Dynamism in law:
What is true of law in general, also holds true of international law, and much
more so. The issue of adaptability, change, and flexibility is considerably more
urgent on a global scale. The growth of laws starts with the growth of society.
There is no specific stage of development, it may be argued that law was created
and then applied arbitrarily.
Consequently, legal orders are gradually put together in response to human
demands via trial and error. They are not developed in overnight. Their roots
and background in the society. About the international law, has aptly remarked
by soviet authors, "it is not static. It is constantly developing, sometimes
does not display any development in international law, other times anticipates
them and gives an early warning of tendencies in the development of
international law.
At the major turning point in history, changes have been done very significantly
in international law. For example, on 5th June 1989, the United Nations
Environment Program warned people of the growth in temperature of the earth due
to the greenhouse effect and gave the slogan of global warming.
This indeed is a very serious problem with which the world is confronted. Due to
the increase in temperature of the Earth level, the seas waters will increase.
The crucial turns in history, there are qualitative changes in the international
law, also a significant qualitative change witnessed in June 1992.
By
C. Wilfred Jenks
"The all experience suggests that, while economic growth, education and social
attitudes have a for reaching influence on social policy they can exercise their
necessarily gradual influence effectively only, when law provides a framework of
recognized obligation and settled within which they can operate".
According to �professor Edgar Bodenheimer.
"Law being the cement which holds the social structure together, must
intelligently link the past with the present without ignoring the pressing
claims of the future".
The word "International law" used for the first time by "sir Jeremy Bentham" in
1789 in his famous book "Principles of morals and Legislation" and father of
international law is Hugo Grotius.
"International law may be defined as the body of customary and treaty, rules,
which are consider legally binding by states in their intercourse with each
other". The existence of international law is the result of increased interstate
engagement.
It mainly aims to maintain international peace and security among different
states, it also helps in promotion of friendly relation among the concern body,
and provide basic humanitarian right, to solve international problems through
international cooperation, refrain the state from using malicious right and
force over any other states, its main aims to solve dispute peacefully between
states.
Although many crisis have in international law, there is a sense of crisis in
international law as a result of the rapidly changes in different fields. This
crisis is product of accelerating process of changes in global community.
Example; rapid progress in technology, rising new ideology, including militant
communism, decolonization, fear of wars, and dispute in international trade,
practices power, etc.
Definition of international law
The word "International law" used for the first time by "sir Jeremy Bentham" in
1789 in his famous book "Principles of morals and Legislation" and father of
international law is "Hugo Grotius.
"International law may be defined as the body of customary and treaty, rules,
which are consider legally binding by states in their intercourse with each
other". The existence of international law is the result of increased interstate
engagement.
International laws are a set of rules, treaties, and agreements that are binding
between countries, it is basically a consent-based system. country come together
to make binding rules that they believe will benefit the citizens and the
nation.
In the view of I.L. 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"
Oppenheim is one of the most celebrated authors, but in this definition have
some Criticism.
Criticism: It has become outlived its utility and become obsolete and
inadequate, indeed every important element in it can now be challenged.
- In the first site not only states should be there but public
organization also because Future of international law is closely tied to the
future of international organizations, and their right and duties under
international law. International organizations may not have all rights and
duties that states do, but they may have some of them.
- In the second term Civilized States:
In those time was a so-called criterion for civilized states, that
uncivilized states were neither long history or culture Even though China
had 5000 old culture year, he was not included in civilized group.
- Third is, Customary and conventional rule:
It is now widely recognized by states that not only customary and
conventional rules but also General principle of law.
- Art 38 international court of justice describe it, as a third source,
and it may be used during solving any international dispute if court not
find any treaties or any particular point between states.
New definition of international law according to 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 are not only subject of international law. International
organization and, to some extent, also individuals may be subjects of right
conferred and duties imposed by international law.
In the view of
J.L. Brierly:
"The law of nation or international law may be defined as the body of rules and
principle of action, which are binding upon civilized states in their relation
with another."
In the view of
Torsten Gihl:
"The term of international law means the body of rule of law which apply within
the international community or society of states."
By the
Coleridge C.J.: "The law of nation is that collection of usages
which civilized states have agreed to observed in their dealings with one
another." This definition was given in
Queen vs Keyn case.
In the view of
Charles G. Fenwick: "International law may be defined in
broads term as the body of general principles and specific rules which are
binding upon the members of the international community in their mutual
relation".
In the view of
Whiteman: "International law is the standards of conduct,
at given time, for states and other entities subject thereto." This is very
brief but very appropriate definition.
In the view of
J.G. Starke: "Sir J.G. defined international law as the
bodyof 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 relation with each other, and which includes also;
- The rules of law relating to the functioning of international institution
or organization, their relation with each other, and their relation with
states and individuals.
- Certain rules of law relating to the individuals and non-states entities
so far as the rights or duties of such individuals and non-states entities
are the concern of the international community.
Type of international law
International law can be divided in two important part, Public international
law, and private international law:
Public International law:
Public international law refers to rules and
regulation between certain states and international institutions. And it
establishes guidelines for everything that affects humanity, including the
environment, world trade, the ocean, and human rights.
Public international law applies on states and international organization like
United nation, world trade organization, and bank for international settlement (BIS)
etc.
There are various aspects of Public international law:
- Custom
- Standard behavior which are globally accepted
- Treaties, agreement etc.
For example: Kyoto protocol, Geneva convention, treaty of Paris etc.
Private International Law: Private international law also referred to as
conflict of laws, it establishes and deals with the relation between citizens
and private entities of different countries, peoples are from different parts of
the nations, and many times they are interacting with each other forming legal
relations.
For example; a Japanese woman and an Indian man were married in India. In case
they ever want a divorce, the rules of private international law will determine
where they will be required to go either to a Japanese court or an Indian court
to get divorced.
Development of international law
If we want to know about the development of international law, we should watch
the history of international law. History of international law started with
oldest treaties and agreement. The international law is not just a result of
treaties of 19th and 20th centuries. Its practice started in ancient time. Peace
treaties between the Mesopotamian city of Lagash and Uma are considered as
beginning of international law. The concept of governance and international
relation were developed by the Greeks. that's made the foundation of the
international legal system.
Present day modern international law evolved during 15 centuries and was
developed in European states. Renaissance in Europe played a vital role in
evolution of international law.
Treaty Between LAGASH And UMMA:
"This treaty known as oldest and first boundary
water treaty of world". Lagash and Umma were two Sumerian city of Mesopotamia,
both had some fertile land, both fertile land was irrigated by Tigris water
canal also knows as Lum water canal. Canal was divided between both region and
maintain by both cities.
Umma also used some fertile land of Lagash for the
cultivation on the agreement of that he would do maintain of canal but after
this agreement umma denied to Maintain the canal, and refused to maintain to pay
debt to Lagash. umma was doing unilateral diversion of water on upstream.
Consequently, canal was destroyed partially.
As a result, Lagash and Umma fight
to against each other, umma was ultimately defeated by Lagash under the
leadership of Enantive 2470 BC and Enmetena. Consequently, Umma accepted all
promise of Lagash, so umma started repairing of canal and stop the diversion of
Water.
Treaty of Hudaybiyyah:
Treaty of Hudaybiyyah is known as first treaty in Islam.
Muhammad, the founder of Islam, lived at the time of the Treaty of Hudaybiyyah
in Mecca. When the Prophet Muhammad was gone mecca with his 1400 fowlers, they
are resisted by Quraishi tribe, but prophet Muhammad not used any force even
though he had 1400 fowlers.
He could use their power but Muhammad chose to make
a peace treaty and the Duration of treaty was 9 years 9 month 9 days. This was
first peace treaty of world and also known as Treaty of "Sulah Hudaybiyyah".
The point of this treaty:
- Rather than travelling to Mecca that year, the Messenger of Allah would have
to travel back to Medina. The Muslim will make their annual pilgrimage in the
coming year, and they will remain in peace in Mecca for three days, continuing
into future years, without using any weapons other than sheathed swords.
- People who wish to make a covenant with the Prophet (Muhammad) will be
permitted to do so, as well as those wishing to co-operate with the Quraish. Any
person who enters one of the parties will be regarded as a member of that party
and any aggression directed at them will be considered aggression against them.
- Whoever flees to Muhammad from Mecca without the permission of his
guardians will be sent back to the Quraysh, but those who come to the Muslims will not.
Peace Treaty Of Westphalia, 1648:
Peace of Westphalia is series of treaties
which is signed in 1648. The peace treaty of Westphalia is related to 30 years
war in Europe which lasted from 1618 to 1648.Afterward the peace treaty
Augsburg, the division of religion created tension in the entire Roman Empire
and from here 30 years war started.
The 30 years war was fought between the Catholic league and the Protestant
union. In catholic league were Habsburg France Spain and protestant union were
Norway, Denmark. The war started with isolated conflict between Bohemia and Holy
Empire, gradually different group like, Swedish and French started joining and
over time this war engulfed the whole of Europe.
Ideas like non-interference or
peaceful coexistence did not matter at the time. As well as time was passed the
motive of war gradually changed and became political power and balance of power
in Europe. In the last of war catholic France were funded by protestant Sweden,
thereby war which started for religion took the shape of Political power and
dominance. By the kingdoms realized that the war was not beneficial for anyone
and diplomacy and negotiation could be an alternative of war, 18 lakh peoples
had dead in this war and afterwards decision was taken for end of war.
And scholars of history, law, politics started thinking about better system and
relation between states and their sovereign powers. Resulted negotiation of
congress of Westphalia started in 1642 and continue to till 4 years, ultimately
after 4 years they were signed a treaty of Westphalia in 1648.
Three Primary Elements Of This Treaty
- Wider Formal Religious Freedom
Treaty of Augsburg was again recognized and the rules as well as the subjects
were given freedom of Religion because the people realized that one of the
reasons of the war was the lack of religions freedom.
- Introduction of diplomatic profession:
This treaty legally recognized diplomats and compromise offers in foreign
policy.
This treaty legally recognized diplomats and compromise offers in foreign
policy.
- Recognition of sovereign states:
Under its sovereignty and peaceful
co-existence was recognized. Due to the right of self-determination, the country
had the freedom to choose its own path. Nation states began to form and it was
decided that no state would use its power against other states without reason.
For example, the small town of Brandenburg as also given a territory. This
Brandenburg later became Germany.
- The origin of this concept of sovereignty, diplomacy and mediation between
states is also Westphalia.
- The peace of Westphalia is also changed the war of nature, the war was a
legitimate solution to solve any conflict before the 1648 because the
concept of sovereignty had also not evolved, any powerful kingdom could
attack or capture a kingdom weaker than itself. This peace treaty
establishes, that no state has claim the right to destroy any other state.
The Peace of Westphalia system considered a model of international politics
and state sovereignty. At the end of 30 years war the roman empire declined
as the most powerful empire, now Habsburg empire and France emerged as a new
super power.
- The treaty of Westphalia influenced the modern theory of international
trade law.
- The all barriers of trade and commerce which are imposed during war, had
removed. In the First-time international law established through this
treaty. Which is considered the foundation of international communities such
as European Union, and U.N.
International organizations like the UN. The European Union maintains relations
between states, but having a supreme authority like the Holy Empire was not
possible today, and the treaty of Westphalia is solely responsible for this.
Grotius the father of modern Law of nation: The Dutch scholar, Hugo Grotius, has
been celebrated as the father of international law. Much of the theory of
international law came from the Hugo Grotius books.
Example: "Mare Liberum." This work strongly argues for freedom of the sea.
De jure Belli ac pacis (the law of war and peace, etc.
The acceptance of the law of nature as a separate source from customs for the
rule of law of nations was one of Grotius's central tenets. His work was
frequently cited as a source of reference and authority in court rulings,
textbooks, and later scholarly writings.
Transformation of European International law into international law:
As was
already said, the current European System governs contemporary international
law. Early on, a few old Christian states in Western Europe used international
law to govern their interactions with one another. This law was made up of the
customs these states recognised and the treaties they signed. Later, more
Christian nations joined the Family of Nations; hence, at that time, it was
sometimes referred to as the "European Law of Nations."
Later, more Christian
nations joined the Family of Nations; hence, at that time, it was sometimes
referred to as the "European Law of Nations." The United States was the most
significant of these Christian states to join the Family of Nations in the next
stage. The majority of these states were formerly colonies of European states.
Some non-Christian states joined the Family of Nations during the following
stage in the evolution of international law.
This phase got started with
Turkey's inclusion in the Family of Nations. International law ceased to be a
law solely between Christian states once Turkey was admitted to the Family of
Nations in 1856. Through Article 7 of the Treaty of Paris, 1856, Turkey was
specifically admitted into the Family of Nations. However, Turkey was not
acknowledged as a full member of the Family of Nations until 1923.
Other
non-Christian nations, such as Japan and India, joined the family of nations
after Turkey. After the First World War, several non-Christian states joined the
League of Nations, marking the last phase in the formation of international law
in this regard. Other non-Christian nations that attended the conference in San
Francisco were Egypt, Iraq, Saudi Arabia, Lebanon, and Syria.
Christian and
non-Christian states are not now distinguished from one another. The Family of
Nations has more than tripled in size since 1945 (the year the United Nations
Charter was adopted and approved by 51 states). Currently, there are 166 member
states in the United Nations, but that number might climb to 174 soon.
Development of International law during 19th And 20th centuries:
During 19th and 20th century had many of factors to development of international
law. there was a significant improvement in the relationship between States and
their interactions, and many rules and principles were formulated on the basis
of the practice of state. We will discuss them under the following headings.
- Congress of Vienna, 1815:
The Congress of Vienna, which took place in 1815, was a turning point in the
evolution of international law. Many rules of international law were
developed at this first significant European conference, including those
governing international rivers, the classification of diplomatic agents;
- Declaration of paris, 1856:
Many regulations pertaining to naval warfare were
outlined in the Declaration of Paris, a treaty that made laws. It was forbidden
to attack undefended civilians during naval conflict. It was also stated that
during a war, enemy ships could be destroyed by other means, but that before
doing so, precautions needed to be taken to ensure the safety of the ship's
crew.
- Geneva convention, 1864:
In the Geneva Convention of 1864, a number of
regulations governing the injured and ill members of the armed forces during
land warfare were established. It was forbidden to kill injured soldiers, and
guidelines were established for how to treat them.
- Hague conference of 1899 and 1907:
The Hague Conferences of 1899 and 1907 are
rightly regarded as significant turning points in the evolution of international
law. They led to the adoption of a number of conventions on different
international issues. These conferences placed a strong emphasis on using
peaceful means to resolve international disputes. Many international legal
regulations governing naval and land combat have been developed. Bombardment
over undefended individuals was ruled unlawful. Additionally, efforts were made
to establish the boundaries of armaments and ultimately achieve disarmament.
During naval conflict, neutral state obligations and rights were also clearly
weakened. The creation of the Permanent Court of Arbitration was yet another
significant accomplishment of the Hague Conferences.
- The league of nation:
The world's nations felt the need for an international organisation following the First World War, one that could not only peacefully
regulate international relations but also avert future conflicts. The League of
Nations was established under the Treaty of Versailles, 1919. The League of
Nations, for the first time, imposed certain restrictions upon the nations' right to resort to war at their will. According to the League of Nations
Covenant, disputes must be resolved through arbitration, judicial resolution, or
council inquiry before turning to war.
It was also stipulated that if their
disputes could not be resolved through these means, they would not go to war for
three months after such failure. It was also stated that any member of the
League who went to war in violation or disregard of the provisions of the
Covenant would be considered the enemy of the entire League of Nations. Another
significant achievement of the League of Nations was the establishment of the
Permanent Court of International Justice, which made significant contributions
to the progressive development of international law.
The League of Nations
Covenant was, in fact, a law-making International Treaty. It was the auspicious
start to a good trend. "Since the establishment of the League of Nations, the
development of International law has been accomplished primarily through the
creation of International organisations by law-making treaties and the
conclusion of law-making treaties through International organisations.
- Geneva convention, 1929:
This convention was signed by 47 countries from
around the world. This convention established many rules concerning the
treatment of prisoners of war. Retaliation against prisoners of war, cruelty to
them, and collective punishment were all prohibited. Rules were also developed
for providing medical care and other amenities to prisoners of war.
- Second world war:
Almost all of the preceding rules of international law were
flagrantly violated during the second world war, which became a total war. It
did, however, sow the seeds of a future world organisation because the
devastating effects and hair-raising experiences of the war compelled the
nations of the world to try again to establish an international organisation
that could ensure lasting peace and establish the rule of law in the
international field. As a result, the Second World War indirectly resulted in
the establishment of the United Nations.
- The united nation:
The United Nations Charter came into effect on October 24,
1945 after 2nd world war by 51 countries. And they are committed to maintaining
international peace and security, develop friendly relation among the nations,
and promoting social progress, better living standards and human right thus the
United Nations was established.
In the beginning the number of its members were
only 51 which has now swelled to 193. It is an international treaty which
governs its members mutual relations with its members. The United Nations
provided a significant impetus to the development of international law.
According to Article 13, paragraph 1 (a) of the Charter, the General Assembly
shall initiate studies and make recommendations to promote international
cooperation in the political field.
For this purpose, UNGA (united nation
general assembly) Create a international law commission for doing study on
various aspect of international law and its codification, and this commission
would reported to UNGA. further the international law commission done its work
with great distinction. it was drafted articles of several convention and
treaties which have been eventually adopted.
Ex. Geneva convention, Vienna convention etc.
After the establishment of United Nation, the development of international law
has been effective mainly through multilateral law-making treaties. The main
objective of international law is established the rule of law international
field and to ensure to maintain peace and security among the Nations. It is
possible only if it adopts itself to the changing times and circumstances.
The United Nation has four important purposes:
- To keep peace throughout the world;
- To develop friendly relations among nations;
- To help nations work together to improve the lives of poor people, to
conquer hunger, disease and illiteracy, and to encourage respect for each
other's rights and freedoms;
- To be a centre for harmonizing the actions of nations to achieve these
goals
Codification of international law
We cover in this topic only an overview of "codification of international law"
By codification, we usually mean the process of reducing the entire body of law
into Code in the form of enacted law. Codification refers to any systematic
statement of the whole or part of the law in written form, and it does not
always imply a process that leaves the main substance of the law unchanged,
though this may be true in some cases. The term "codification of international
law" is used for convenience to refer to the more precise formulation and
systematisation of rules of international law in fields where there has already
been extensive State practise, precedent, and doctrine.
History of codification:
The history of codification can be traced back to the
late 18th century, when Bentham proposed the codification of international law.
In 1792, the French Convention made an unsuccessful attempt to draught a
Declaration of the Rights of Man.
The two Hague conference:
The First Hague Conference, convened by Emperor
Nicholas II of Russia in 1899, consequently in the adoption of two conventions
in the form of a code:
- Convention on the pacific settlement of international dispute
- Convention on the Laws and Customs of War on land
These conventions proved to be significant milestones in the field of
international law codification. The Second Hague Conference was held in 1907,
following the success of the First Hague Conference. This conference produced
thirteen conventions on warfare and neutrality in land and sea warfare, the
status of enemy merchantmen at the outbreak of war, naval bombardment, and the
conversion of merchant ships into men-of-war. This event was attended by 44
states.
Declaration of London:
In 1909, a naval conference was held in London to create
an agreed-upon list of contraband goods. The agreement reached was incorporated
into the Declaration of London, 1909. However, because it was not ratified, it
never entered into force. Because of the evolution of the First World War into a
total war, it lost all significance.
Codification under the league of nation:
The League of Nations provided a
significant impetus to the work of codifying international law. "It was left to
the League of Nations to approach the proper problem of codification in a
systematic manner." In 1924, the League Council appointed a committee of sixteen
jurists to report to the Council on subjects ripe for codification.
The
Committee recommended that the following subjects be codified:
- Nationality
- Territorial waters;
- State liability for damage done to foreigners' persons or property in
their territory
- Diplomatic immunities and privileges.
- International Conference Procedure and Treaty Conclusion and Drafting
Procedure
- Exploitation of Sea Product
- Piracy
On the recommendation of the said Committee, the Assembly decided to hold a
conference in Hague to codify the topics of:
- Nationality,
- Territorial waters, and
- State responsibility for damage done to foreigners in their territories.
The Committee of Experts continued its work and reported to the Council in 1928
that the following two topics were also ready for codification: (1) law relating
to the functions and competence of Consuls; and (2) the competence of courts
with regard to foreign States.
The Hague codification conference of 1930: The Hague Conference of 1930 is
regarded as the first conference dedicated to the codification of international
law. For each of the topics, three committees were formed.
nationality, territorial waters, and state responsibility for damage done to
foreigners in their territories. There was no general agreement reached on
territorial waters and the responsibility of states for damage done in their
territories to foreigners� property and persons. However, the Committee on
Nationality adopted a number of conventions on issues concerning the conflict of
Nationality Laws and Statelessness.
Codification under the united nation: According to Article 13(1)(a) of the UN
Charter, the General Assembly shall initiate studies and make recommendations
with the goal of "promoting international cooperation in the political field"
and "encouraging the progressive development of International Law."
The most
important task of codification is the systematisation and the progressive
development of this amorphous and relatively unorganised body of law. On
December 11, 1946, the U.N. General Assembly appointed a committee for the
progressive development of International Law and its codification.
In 1947, the
General Assembly decided to set up an International Law Commission. It met its
first meeting on April 11, 1949. The Commission also considers proposals and
draft multilateral conventions submitted by the Members of the U.N. When the
Commission considers that the codification of a particular topic is necessary or
desirable, it shall submit its recommendations to the General Assembly. Article
24 provides that the Commission shall consider ways and means for making the
evidence of international law more readily available.
Work of the international law commission:
The establishment of international law
commission was turning point in the international law codification process. The UNGA (united nation general assembly) directed the international law commission
on 21 November 1947:
- to formulate the principles of international law recognised in the Charter as well as in the Nuremberg Tribunal's judgement.
- to prepare a draft code of offences against humanity's peace and security
- to draft a declaration on the rights and obligations of states.
- to suggest the desirability and possibility of establishing an
international judicial body for the trial of genocide and certain other
crimes.
The commission
started its work in 1949, after completed its work it decided to give priority
to (A). Law of treaties. (B) Arbitral procedure. (C)law relating to high seas.
By the year 1947 commission has submitted final draft, relating to:
Diplomatic
intercourse and immunities, nationality, law of treaties, regime of territorial�s waters, regime of the high seas, consular intercourse and
immunities, arbitral procedure.
In addition to commission had also worked in
some extra various topic, example:
Draft declaration on right and duties
states, draft code of offences against the peace and security of mankind.,
question of definition of aggression, state responsibility et-cetera. Although
the ILC. had dealt with many topics, but its major contribution had so far been
in the fields of the:
- The law of sea
- Law of treaties
- Law of diplomatic and consular relation.
The International Law Commission also did some more important codification work,
and thus the ILC played an important role in international law codification.
"The convention and treaties provide an international system with legislative
machinery, although it isn't equivalent to municipal legislative". Example
:Geneva convention on the law of sea, 1958, Vienna convention1961, international
convention for the suppression of the financing of terrorism 1999, International
convention for the Suppression of acts of nuclear Terrorism 2005. Et-cetera.
Sources of international law
In this topic, we will cover sources of international law in a very limited
number of paragraphs.
International law is comprehensive in nature, and because it is an amalgamation
of various sources, there is no single system of laws that can interpret and
extend the law, but international law exists and can be determined.
There are
sources from which international law rules can be extracted and
analyzed. According to Lawrence, if we take the source of law that has all the
authority required to give it binding force, then there is only one source of
law in International Law, and that is the consent of Nations. This consent can
be implicit (custom) or explicit (treaties).
The major sources of international law that form the conventional source include
international conventions and treaties. International law sources are classified
as either primary or secondary, as explained below.
Primary sources
The primary sources of international law are formal in nature. They are derived
from official bodies such as treaties, customs, and legal principles. Article
38(1) (a-c) of the ICJ statute is widely acknowledged as the formal source of
International Law. It is widely regarded as an authoritative statement of
international law's sources. Article 38 of the Statute of the International
Court of Justice in The Hague has been interpreted as a handy reference guide to
international legal sources.
Article 38 of the ICJ statute; Article 38(1) (a-c) of the ICJ was adopted by the
same provision of the statute of the Permanent Court of International Justice,
which operated under the auspices/support of the Legal of Nations in 1920. The
article refers to the primary sources of international law listed below:
Custom as source of international law:
The original and oldest sources of law
and practice known as the custom. The rules of customary international law were
established through a long historical process that was recognised by the entire
community. Because there is no written source of law, the presence of customary
rules can be deduced from state practice and behavior. A customary law rule is
said to have two components:
First, widespread, and consistent State practice is required.
Second, there must be "opinio Juris," which is a Latin term that refers to a
legal obligation to believe in the existence of such law.
Convention as a source of international law : Treaties and convention in
international law are the most important sources of international law in modern
period. Example Vienna convention, treaties of Westphalia, etcetera.
Secondary sources of international law
Article 38(1)(d) is part of the material source of international law, also known
as the secondary source. It states that judicial decisions and the teachings of
the most highly qualified publicists from various nations also aid in the
formation of international law, but they are not binding and are merely advisory
in nature.
Judicial decision:
Through its advisory opinions, case laws, and judge's rule,
the ICJ plays a significant role in the law-making process. One major example is
the principle of the prohibition against the use or threat of use of force
established by the court in the case of Nicaragua vs. USA, which is now
considered a part of Customary International Law.
Major portions of this source also include the teachings of highly qualified
writers such as Gentili, Grotius, and Vattel, who were regarded as the supreme
authorities of international law from the sixteenth to the eighteenth centuries.
Textbooks are used to discover what the law is on any given point rather than as
a source of actual rules, and even the most respected international lawyers' writings cannot create law.
These are regarded as an evidentiary source of law
because they explain and comprehend the international principles. They are
important because they fill in the gaps in international law where treaties or
customs do not exist.
Some other sources of international law although we watched some above sources
but also have Several other sources in international law as a : international
comity, state paper, equity and justice, state guidance of their executive and
officer etcetera.
"These sources are given in article 38 of the statute of International Court of
Justice."
In art. 38 of the statute of international court of Justice, the
following sources are given:
- International convention
- Custom
- General principles of law recognised by civilized nation
- Judicial decisions and juristic opinions
The necessity of international law
The rules of war and diplomatic relations were the first manifestations of
international law. During the Age of Discovery, rules governing the acquisition
of territory became more important, and the principle of freedom of the seas was
discussed because it was necessary for the expansion of trade.
International law, therefore, grew out of necessity. As international engagement
grew, so did international law. In today's world, international law is the most
practical means of regulating world order.
Some of the most important functions
of international law are:
- To provide fundamental security and human rights.
- To provide peace and security.
- To provide international stage for nation where they can meet and solve
their problems.
- To prevent conflict between the nations and state and maintain peace.
- It is a path to governing the relationship between nations worldwide.
Main aim of international law to promote justice, prosperity, peace and security
around the world.
Conclusion
The growth of laws starts with the growth of society. There is no specific stage
of development, it may be argued that law was created and then applied
arbitrarily. Consequently, legal orders are gradually put together in response
to human demands via trial and error. They are not developed in overnight. Their
roots and background in the society.
Based on the information provided, we can conclude that international law is a
set of rules and principles that govern the conduct of international community
members relations.
The international law is not just a result of treaties of 19th and 20th
centuries. Its practice started in ancient time.
In more concisely we may say that international laws were developed
simultaneously with the growth of treaties and conventions and the development
of the nation and society.
Bibliography:
- R.Kapoor, (2006). International Law And Human Rights . Lucknow : Central
Law Agency
- I. A. Shearer, (1994). starke's Iinternational law. New Delhi : Oxford
University Press
- https://legal.un.org/cod/
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