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International Law: Definitions, Nature And Basis

The term International Law or Law of Nations has been used in contradistinction to the National Law or Municipal Law which means the law of country. International Law is, generally, above and outside, the national laws of the various States and to some extent operates on the territories of all the States.

The question whether it can be called a superior law remains in doubt in spite of the growing acceptance and respect for international law among the member-States. International Law deals with States as legal and political entities and it applies to all the States equally without any regard to their size and power. However, the powerful States have a peculiar tendency to interpret the principles of international law in such a manner as to suit their interest and convenience.

Recent geometrical advances in science, technology and industry have brought to the fore one stark fact, which no nation, howsoever, big or small, can afford to lead an isolated life. There is more and more collaboration between the nationals of one country with the nationals of other countries. Multi-national companies have sprung up which have their offices in many countries.

Today the scope of international law has extended from the preservation of peace to regulate the various activities of international life, like space expeditions, ocean floor explorations, protection of human rights and global environment, management of international financial system, etc. All these factors and developments emphasize the need for an international law in the modem scenario.

Definition of International Law

A law, howsoever important and crucial, is not of much use if it is not properly defined and codified. There is no single universally accepted definition of international law, though some good attempts have been made in that direction.

The words international law was used for the first time by eminent British jurist, Bentham in 1780. Since then, these words have been used to denote the body of roles which regulate the relations among States. Though international law can be traced to ancient Greece, Rome and India, it cannot be denied that the public international law which we know today has come to us through Europe. It is determined by the modem European system.

Oppenheim's definition

Professor Oppenheim has defined international law in the following words:

Law of Nations or international law is the name for the body of customary and conventional rules which are considered legally binding by civilized States in their intercourse with each other.
The definition given by Oppenheim in 1905 has become obsolete and inadequate.

The definition has been subject to the following criticism:

  1. The definition takes into account of the relations of States' only. But, presently, international organisations and institutions are also regarded as subjects of international law. They have been given rights and duties under international law, even though they may not have all the rights and duties that States have. Certain activities of multinational corporations are also regulated by this branch of law.

  2. International Law also provides certain rights and duties to individuals. It has been so, particularly, after the establishment of the United Nations Organisation. Universal Declaration of Human Rights and International Covenants of Human Rights further confirm that the individuals have become not only the subjects of international law but can also directly claim rights and remedies provided under international law. Above all, the Charter of the U.N. begins with the words we the people of the United Nations.

    Thus, the present international law cannot be regarded as the law governing the relations between States, but must be regarded as the common law of mankind in an early stage of its development (Jenks). At present, it also governs relations between States and international organisations, between States and private persons, and between international organisations and private persons (Judge Jessup has therefore suggested an alternative name Trans-national law to include all law which regulates actions or events that transcend national frontiers)

  3. The use of the term civilized States by Oppenheim is also severely criticised. In not too distant past, the Western States regarded only the Christian States' as civilized States. At present there are many members of the U.N. which include Christian as well as non-Christian States. The term civilized States' was thus deleted in the later editions of Oppenheim's book.

  4. The words legally binding' (in the Oppenheim's definition) connote positive character which is diffused and diluted by the subsequent words by civilized States. Oppenheim does not say that these rules are legally binding', but that they are considered so. His definition, though broad, is a qualified one.

  5. The definition lays down that the rules of international law derive only from customs and treaties, but it is not correct. Article 38 of the Statute of International Court of Justice mentions General Principles of Law recognised by the civilized nations as third source of international law to be used while deciding an international dispute.

  6. The expression body of rules' denotes that international law is static or fixed. Its rules cannot be changed. However, international law is a dynamic and living law. Its rules have been changing with the passage of time out of experiences and necessities of situations (It may be noted that it has become customary to define law as body of rules, therefore, it is not proper to criticise Oppenheim on this account).
In the ninth edition of Oppenheim's book (1992) the term international law' has been defined differently after taking into account of the new developments:
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 relations of States, but States are not the only subjects of international law. International organisations and, to some extent, also individuals may be subjects of rights conferred and duties imposed by international law.

This new definition of international law is nearly similar to that given by Starke and Fenwick. However, it is still deficient in one respect viz. its silence regarding general principles of law' recognized by civilized nations.

Other Classic definitions

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.
Hackworth similarly defines: International Law consists of a body of rules governing the relations between States.

Queen v. Keyn, (2 Ex. D. 63 (1876)). Lord Coleridge, C.J. defined international law as: The law of nations is the collection of usages which civilized States have agreed to observe in their dealings with one another.

Gray: International Law or the law of nations is the name of a body of rules which according to the usual definitions regulate the conduct of States in their intercourse with each other.
Kelsen has also given a similar definition.

Cobbett:

International Law may be described as the sum of the rules accepted by civilized States as determining their conduct towards each other, and towards each other's subjects.
The above definitions can also be criticised in the same way as Oppenheim's definition has been criticised. The definitions are inadequate to represent modem international law.

Modern definitions

Fenwick:

International law may be defined in broad terms as the body of general principles and specific rules which are binding upon the members of the international community in their mutual relations. The definition takes into account the changes that have taken place after the Second World War. The words members of the international community' include States, international institutions, individuals and non-State entities. The term general principles' is also incorporated in the definition.

Whiteman:

International law is the standard of conduct, at a given time, for States and other entities subject thereto. A brief but adequate definition; the words other entities subject thereto' may include international organisations, individuals and non-State entities. Whiteman has also emphasised dynamic aspect of international law: International Law is, more or less, in a continual state of change and development.

Starke:

International law may be defined as that body of law which is composed for its greater part of the principles and rules of conduct which States feel themselves bound to observe, and, therefore, do commonly observe in their relations with each other, and which includes also:
  1. the rules of law relating to the functioning of international institutions/organisations, their relations with each other, and their relations with State and individuals; and
  2. certain rules of law relating to individuals and non-State entities so far as the rights and duties of such individuals and non-State entities are the concern of the international community.
The definition of Starke takes into account the changing character of international law and truly reflects the present position of international law. However, if an entity not enumerated by Starke ever comes within the scope of international law with the passage of time; the definition would again be subjected to criticism. Thus, the definition does not stand correct for all times to come.

Schwarzenberger:

International law is the body of legal rules which apply between sovereign States and such other entities as have been granted international personality.

Thus, unlike Starke, Schwarzenberger very rightly preferred not to name the entities whose rights and duties are regulated by international law. According to him, international law, if and when grants international personality to any entity, or when international law would be capable of regulating rights and duties of any entity, its rules shall apply to them. It is immaterial if only certain miles regulating the rights and duties are framed for them.

Development Of International Law (Scope of International Law)

International law is a dynamic law. It has been changing since its inception. It is constantly developing, sometimes it does not keep up with developments, other times it anticipates them and gives an early warning of tendencies in the development of international relations. It is a developing philosophy of values. For example, in June 1989, the United Nations Environment Programme (UNEP) with a view to warn the people of the increase in earth's temperature due to green-house effect, gave the slogan of Global Warming'. Similarly, the Rio Conference in 1992 highlighted the need to protect and preserve earth from environmental pollution. At crucial or important turns of history, there are qualitative changes in international law. The recent breaking of the Soviet Union is a glaring example of this.

New International Law

The term new international law indicates the norms and values that have been evolved since the Second World War. The traditional, juridical and individualistic character of international law (i.e. law governing the relations of sovereign States with each other) is being replaced by the law of social interdependence (i.e. interdependence of the nations or international community). At the present time, there is hardly a State which in the interests of the international community has not accepted restrictions on its liberty of action.

The shift has been from the more or less formal regulation of diplomatic relations between States to an international law of welfare (Friedmann). Interdependence among nations, today, has become inevitable in view of the expanding horizons of science, technology, trade, commerce, etc. In fact, the growth and development of international law is parallel to the growth and development of international relations in the field of science and technology, trade and commerce, etc.

In the 20th century, factors which contributed largely to the development of international law further could be summarised as below:

  1. International organisations: subject of international law for the first time, organizations of universal character were set up viz. U.N., ILO, ICJ, etc. The organs of international organisations contribute to the clarification and development of international law. Handling of social, cultural and economic problems of the States by the international organisations is an important event of the present century. In fact, the future belongs to such organisations.
     
  2. Individuals: subject of international law, New international law has been evolved around the individual. The most important change that has taken place is that of addition of new subjects. International organisations and individuals are now regarded as subjects of international law. It is significant that individuals have been given a right to make petitions before some international forums. Corbett has written:

    We are witnessing a transition in international legal development from a prolonged stage in which the predominant concern was the regulation of the conduct of States as distinct entities to one in which equal attention is given to promoting the growth of a body of world law transcending States, and applicable on a footing of equality, to individuals, corporations, international organisations and States.
     
  3. Codification of international law: In the 20th century, rules of international law which were ambiguous and uncertain have been made systematically in written form which is applied uniformly to all the States or most of the States.
     
  4. Multilateral treaties: In the present century, rules of international law have been made by the conclusion of treaties in many frontiers which had never been imagined in the earlier centuries. For instance, at present, space, moon, and deep sea are governed in accordance with the rules framed through multilateral treaties.

Crisis in International Law

As compared to municipal law, international law is confronted with many difficulties and problems to keep pace with the rapidly changing times and circumstances. One of the main defects of international law, according to Brierly, has been that it has aimed to stabilize rather than to provide for the growth of international society, and to maintain existing values rather than to create new ones. In the absence of a world legislative body, treaty making is the counter part of the legislative process in the domestic field of the States. But treaty process is a cumbersome process for it obviously depends upon the consent of States with different ideologies, traditions and interests. Above all, the greatest problem is the concept of sovereignty. International law operates in a decentralised system. The rapid changes in different fields have brought a sense of crisis in international law.

The factors responsible for this crisis include - rapid technological progress, the rise of new ideologies and systems of public order, including militant communism, the appearance of many new States of widely different cultural backgrounds and levels of development, the fear of war and growing reluctance of the more advanced States to protect their interests by coercive means, and the increase in the number and functions of international organizations.

Thus, in the dynamic world of today, international law finds itself confronted with many challenges viz. communism, emergence of a large number of new States on the world scene, nuclear weapons, scientific and technological revolution, environmental pollution, AIDS, etc.

International law must be continuously developed by revision in content, expansion of scope, and improvement of the means of securing compliance, so that it is keep in accord with the changing needs of the international community {Edward Collins). Indeed the future of mankind rests on the capability of international law to develop and adapt itself to the changing times and circumstances. International law must become universal in order to serve the interests of all States properly, equitably and effectively.

India's position
Like other new States, India has also sought to reject or modify some of the rules and principles of the traditional international law. India has neither accepted the whole nor has rejected the entire fabric of the traditional international law. India, like many other new nations, has expressed dissatisfaction with some of the rules of international law as developed in the West. Since her emergence as new State after the attainment of independence, India has made her own contribution for the progressive development of international law. Her contribution has been particularly significant in the fields of codification of international law, colonial issue, peaceful coexistence, non-alignment, and, environmental protection.

Is International Law true Law?

One of the most controversial issues that has long been debated and on which the opinions of the jurists are sharply divided concerns the status of international law. The debatable question is: Is international law really law? One view is that international law is not a true law. It is a code of rules of conduct of moral force only. Another view is that international law is a true law, and it is to be regarded as law in the same way as that of ordinary laws of a State which are binding upon the individuals. The controversy whether international law is a law or not revolves on the divergent definitions of the word law' given by the jurists.

Austin's view

According to Austin, law is a command of the sovereign attended by sanction in case of violation of the command. In other words, law should be limited to rules of conduct enacted by a determinate legislative authority and enforced by physical sanction. The superior, according to him, is the real sovereign.

The definition contains two important elements:
  1. Firstly, law is a command enacted by the sovereign legislative authority, and
  2. secondly, it must be enforced by the sovereign authority.
Austin said that international law cannot be called law proper in the true sense, because it has neither sovereign legislative authority to enact law nor there is an adequate sanction behind it. Moreover, there is no enforcement agency which can enforce it as a body of rules. The rules commonly called international law are in fact the rules of positive morality; the rules are analogous to the rules binding a club or society. International law is a code of conduct with moral force and nothing more. It consists of opinions or sentiments current among nations generally'. A rule is a rule of morality, if by common consent of the community it applies to conscience and to conscience only.

Such rules are different from rules of law wherein by common consent of the community it is eventually enforced by external/superior power. International law is a body of rules governing the relations of sovereign States inter se, but there is no sovereign power over and above a sovereign State which could enforce the rules of international law. It is also argued that there is no such executive power in international law as may enforce the decisions of the International Court of Justice and ensure the observance of the provisions of the treaties. International law lacks a potent judiciary. That is why, some writers call international law a quasi-law (Lathan Brown), Other noted jurists holding similar opinion are Bejitham, Holland, Hobbes, Pufendorf, etc.

Criticism of Austin's view

The above view which denies the legal character of international law has been severely criticised by a large number of jurists. According to Oppenheim, law is a body of rules for general conduct within a community which by common consent of this community shall be enforced by external power.

According to this definition:
  1. firstly, there must be community
  2. secondly, there must be a body of rules for human conduct within that community (all the communities submit to the rule of law because they wish to afford due respect and protection to the dignity of men and nations); and
  3. thirdly, there must be common consent of that community that these rules shall be enforced by external powers.
It means that it is not necessary that rules should be enacted through a law-making authority or there should exist a law administering court within the community concerned. Oppenheim said that the three requirements of this definite on are satisfied by international law, to a greater or lesser extent.

However, definition given by Oppenheim will be regarded correct only when it is proved that there exists an international society or community. Oppenheim is of the opinion that the States of the world do together constitute a body bound together through common interests which create extensive intercourse between them, and differences in culture, economic structure, or political system, do not affect as such the existence of an international community as one of the basic factors of international law.

According to Sir Frederic Pollock:

the only essential conditions for the existence of law are the existence of a political community and the recognition by its members of settled rules binding upon them in that capacity, international law seem on the whole to satisfy these conditions.

According to Louis Henkin:
what matter is not whether the international law has legislative, judicial or executive branches corresponding to those we have become accustomed to seek in a domestic society; what matter is whether international law is reflected in the policies of nations and in relations between nations.

Oppenheim regards international law as law because of the following two reasons: firstly, international law is constantly recognized as law in practice, the Government of different States feel that they are legally as well as morally bound to follow it; secondly, while breaking it, States never deny its legal existence, rather they recognise its existence and try to interpret international law as justifying their conduct.

According to Brierly:

the best evidence for the existence of international law is that every State recognizes that it does exist and that it is itself under obligation to observe it. States may often violate international law, just as individuals often violate municipal law; but no more than individuals do, States defend their violations by claiming that they are above the law.

As pointed out by Edward Collins: International law is created and is deemed to be legally binding by authoritative national and international decision makers because they understand that generally agreed upon rules and principles of action serve the indispensable function of providing a basis for the orderly management of international relations.

According to Starke, international law is really law.

He has put forward four main arguments:

  1. firstly, in many primitive communities, a system of law existed without there being a formal legislative authority;
  2. secondly, international legislation in the form of law-making treaties and conventions has come into existence today;
  3. thirdly, the authoritative agencies responsible for the maintenance of international intercourse do not regard international law as merely a moral code;
  4. lastly, the United Nations is based on the true legality of international law.

The arguments of the jurists who regard international law as really law, may be summed up as follows:

  1. The term law cannot be limited to rules of conduct enacted by a sovereign authority. Customary rules of law do exist viz. common law of England. The rules laid down by treaties are binding although they do not emanate from a sovereign political authority. The procedure for formulating international rules is well settled by means of treaties, etc.
     
  2. When international questions arise, States do not rely upon moral arguments but rely upon treaties, precedents and opinions of specialists. Thus, States do not deny the existence of international law. In some States (e.g. USA and UK), international law is treated as part of their own law (Paquete v. Habanna (1900) 175 US 677), As aptly remarked by Prof. Hart, international law is law because States regard it as law. Nothing need be further proved.
     
  3. International conferences and conventions also treat international law as law in its true sense. The United Nations is based on the true legality of international law. As per statute of the International Court of Justice, the Court to decide disputes as are submitted to it in accordance with international law. The Court's decisions are binding upon the parties to a dispute, and under certain conditions its decisions can be enforced. Besides this there are a variety of International Tribunals such as International Tribunal for the Law of the Sea.
     
  4. So far as sanction in law is concerned, international law does not completely lack it.
     
  5. International law is not very frequently violated.
Thousands of treaties have been concluded by the States, but the instances of their violation are very few. Rules regarding immunities provided to diplomatic agents are generally observed. Other rules of international law including the laws of warfare are also observed usually. Every State or municipal law is violated. Frequent violations of law indicate the weakness of enforcement machinery and have nothing to do with the legality of the rules.

Oppenheim observed that:

while the frequency of the violations of international law may strain its legal force to breaking point, the formal (though often cynical) affirmation of its binding nature is not without significance.

Basis of International Law

The roots of international law go deep into history and evidence of treaties, immunities of ambassadors, usages of war, etc. can be found in ancient Egypt, India, the Greek and Roman empires. The present day international law owes its origin to the great jurist Grotius whose work De jure Belli ac Paces (1625) lent legal basis to many areas of international relations. His main idea is that there are certain eternal, unchangeable and independent rules of law which have roots in human reason. This law of reason is called by him as Natural Law.

In the Grotian theory, there are three basis of international law: Laws of reason, Customs, and Treaties. Emanating from his conception are two theories as to true basis of international law:
  1. Naturalist theory (Pufendrof): There exists a system of law which emanates from God or reason or morals. Law of nations is only a part of law of nature. Hart explains that a minimum content of law flowing from the immutable nature of man is that which is necessary for survival of mankind. International peace and security being necessary for survival of human kind, all laws relating to it are thus parts of law of nature. The theory is criticised on the ground that it is too vague.
     
  2. Positivist theory (Bynkershook): Only those principles may be deemed as law which have been adopted with the consent of the States. Law is that which exists in fact. It is that law which is enacted or followed by States (i.e. emanate from their own free will) and is hence binding upon States. Customs and treaties come into existence from express or tacit consent of States. The theory is criticised as all rules of international law are not derived from customs and treaties. Further, a treaty may be binding on third States as well, and, States in some cases are bound by general international law even against their will.
     
  3. Eclectic theory: The views taken by the naturalists and positivists are extreme views. A theory giving equal importance to both the views appears to be correct. As to the true basis of international law, contemporary sociological theories tend to support Naturalism because they argue that international law is based on social interdependence and aims at bringing about international social justice. Thus, natural law underlies even at the positive law (customs and treaties) which is only an expression of this social interdependence.

International Law Is Weak Law

Starke has expressed the view that international law is a weak law. Existing international legislative machinery, operating mainly through lawmaking conventions, is not comparable in efficiency to State legislative machinery.

Some other weaknesses of international law are as follows:
  1. There is no effective executive authority to enforce the rules of international law.
     
  2. The International Court of Justice lacks compulsory jurisdiction in the true sense of the term. The court does not have jurisdiction to decide the disputes of all the States since the court acts with the consent of the States only. Further, the court does not have any real power to enforce its decisions.
     
  3. As compared to rules of State law, the rules of international law suffer from greater uncertainty. Further, rules expressed in treaties, etc. are sometimes formulated in such a way so as to give wide options to the State parties.
     
  4. Due to lack of effective sanctions, rules of international law are frequently violated. Further, to compel the strong' States for the observance of the rules of international law becomes difficult on a number of occasions.
     
  5. International law has, in many cases, failed to maintain order and peace in the world.
A great limitation of international law is that it cannot intervene in the matters which are within the domestic jurisdiction of States. Thus, international law is a weak law in comparison to the municipal law. However, it must be noted that, unlike municipal law, international law operates in a purely decentralised system. All States consider themselves independent and sovereign. International law must be understood and appreciated in the peculiar system in which it operates.

It is as good and effective as it can be under the circumstances and peculiar system under which it operates. It is really creditable that rules of international law are considered binding upon the States because either through treaties or otherwise States have consented to surrender a part of their sovereignties.

Suggestions for improving international law:
  1. The machinery to enforce the rules of international law should be strengthened. The United Nations Charter should be amended so as to authorise the U.N. to intervene in such matters within the domestic jurisdiction of the States as are of international concern.
     
  2. The International Court of Justice should be given compulsory jurisdiction in the true sense of the term, over all international disputes. Further, an International Criminal Court should be established to adjudicate cases relating to international crimes.
     
  3. In order to make international law changeable and adaptable in accordance with the changing times and circumstances, powers and scope of the activities of the International Law Commission should be expanded.
     
  4. The doctrine of judicial precedents should be applied in the field of international law. This will help to strengthen it. In order to strengthen the rule of law in international relations, the General Assembly of U.N. in 1989 declared the period 1990-99 as the United Nations Decade of International Law. The assembly stated by adopting a resolution that the main purposes of the Decade should be, inter alia
    (a) to promote acceptance of and respect for the principles of international law
    (b) to promote means and methods for the peaceful settlement of disputes between States, including resort to and full respect of the international court of justice
    (c) to encourage the progressive development and codification of international law
    (d) to encourage the teaching, study, dissemination and wider appreciation of international law.

These activities are likely to play a positive role in removing the weaknesses of international law. It is felt that the weaknesses generally pointed out are not the weaknesses of the rules of international law.

In fact, they reveal and bring to the fore the lack of feeling on the part of the States as to its imperative character. International law is very much a law, but its observance, progress and development will depend upon the attitude of nations. In order to strengthen international law, it should be clearly recognized by all States that the observance of the rules of international law is in their own interest and hence they should ensure that there are no breaches of the rules of international law.

Sanctions in International law

A sanction is a penalty imposed in order to enforce obedience to a rule of law. Sanctions in international law include measures, procedures and expedients for exerting pressures upon a State to comply with its international legal obligations. A question arises as to what sanctions international law provides to those States which violate the rules. Sanctions in the modem international law are quite different from those which existed in the classical international law.

The latter provided the sanction generally in the form of war and reprisals. However, at present, these measures in most of the cases have become unlawful. Sanctions applied by the aggrieved States are required to be lawful and they must conform to the provisions of U.N. Charter.

Sanctions may be applied by the States individually or collectively by international organisations:

  1. Sanctions by States: A State may apply sanction by means of self-help. The action taken in self-help is required to be in strict compliance with the provisions of the Charter. Under Art. 2(4) of the Charter, the members of U.N. have undertaken that they shall respect the territorial integrity and political independence of each other and shall not use force against each other. Use of armed forces in self-help in response to international wrongful acts not involving armed attack is forbidden.
     
  2. Collective sanctions: International organisations which States themselves have established have been empowered to take collective sanction against State. Under Chapter VII of the United Nations Charter, if there is a threat to the international peace and security or an aggression has taken place, the Security Council can take necessary action to maintain or restore international peace and security.

    The Charter postulates economic, financial and military sanctions. The economic and financial sanctions include the complete or partial severance of economic relations against a State or the application of embargo. Military sanctions may include demonstrations, blockade, and other operations by air, sea or land forces of the members of U.N. Political sanctions (not expressly mentioned in the Charter) include appeal to a State to do or not to do certain acts, suspension of an exercise of the rights and privileges of the membership of U.N., and expulsion from the U.N. membership. Besides the U.N., specialised agencies of it such as ILO, WHO, IPO and ITO have also been authorised to take action against State.

    For instance, constitution of the International Labour Organization lays down a procedure for dealing with complaints regarding a failure by a member State to secure the effective observance of an International Labour Convention binding it. The decisions of the International Court of Justice are binding upon the parties to the dispute. Article 94 of the U.N. also provides that if a party to the dispute does not follow the Court's decision, the other party may approach the Security Council which can take necessary measures to ensure the implementation of the decision.
     
  3. Public opinion: Public opinion is the ultimate sanction behind international law and for that matter any law. Public opinion becomes adverse with the application of U.N. sanctions against a State. It was the world public opinion which forced the United Kingdom and France to pull out their troops from the Suez Canal in 1956.

Effectiveness of Sanctions

International law is not without sanctions although these sanctions are not generally for the enforcement of international law. These sanctions are to maintain or restore international peace and security which is only a part of international law. Further, even these sanctions are not quite effective. Briefly has remarked that sanctions which it possesses are not systematic or centrally directed, and that accordingly they are precarious in their operation.

The greatest shortcoming of international law is the absence of effective machinery to carry out sanctions. Despite this, whatever sanctions there are behind international law make impact upon the States and in practice States generally follow international law.

As remarked by Dias:
The principal reasons why States obey international law appear to be fear and self-interest. Fear operates through war, reprisals, pacific blockade, etc.

However, Rahmatullah Khan has observed:

Nations obey international law not because of the fear of some brooding omnipresence in the sky threatening retribution to the recalcitrant but because they feel obliged (for various reasons) to do so. And the consent of the constituent entities is continually decisive (I.J.I.L. Vol. 15 (1975)).

This is equivalent to saying that law itself has an in-built element of respect and sanction behind it and wise human beings in their own interests need not search for authority to obey law as all laws are ordained to be obeyed (Manu).

The position of international law is somewhat like Manu's concept in this respect that there is no ostensible sanction or world authority... however, respect flowing from inherent utility is so embedded in the very concept of that branch of law that it compels obedience to the precepts and tenets of international law (Dr. Nagendra Singh, I.J.I.L., Vol. 24 (1984)).

As pointed out in Ninth Edition of Oppenheim's International Law:

An emerging system of sanctions for the enforcement of international law is discernible...., there are also certain other indications of a growing maturity in international order, viz. there is increasing acceptance that the rules of international law are the foundation upon which the rights of States rest, and no longer merely limitation upon States' rights which are unlimited.

Whether International Law is the vanishing point of jurisprudence?

Holland regards international law as the vanishing point of jurisprudence because it cannot be kept in the category of law as there is neither any sovereign authority nor there exists sanctions if its rules are violated. There is no judge or arbiter to decide international disputes and he rules of international law are followed by States by courtesy.

It is submitted that while his view was perhaps correct at his time but at present the same is subjected to severe criticism and therefore, it is not tenable in the changed character of international law. It is wrong to say that there are no sanctions at all in international law.

It is incorrect to say that international legal system is without a Court to decide international disputes. If a State violates rules of international law, it can be enforced by an external power. In numerous treaties, States have not only accepted it to be binding but also confirm the fact that it is a law between them. Thus, it is incorrect to say that international law is the vanishing point of jurisprudence.

Differences between Public and Private International Law

It is to be noted that the expression International Law is identical with the so called Public International Law. It is different from Private International Law which is a law of different States and which concerns mainly such matters between individuals as fall at the same time under the jurisdiction of two or more different States. Rules of private international law have evolved to avoid the conflicts which arise due to conflicting rules of municipal or State laws of different countries. Public and private international law differ on many counts.

Firstly, while public law deals primarily with the States and to some extent with the individuals, private law deals primarily with the individuals of two States (e.g. contracts of sale or service between persons in different countries).

Secondly, while rules of private law are part of the internal law of the State concerned, it is not so in the case of public law.

Thirdly, while public law is applied uniformly to all the States, private law differs from State to State.

Fourthly, while private law is enacted mainly through legislation enacted by the legislatures of different States, public law evolves largely through the consent of the States by means of customs and treaties. Private international law deals entirely with the relations of persons living under different legal systems. Occasions for the application of it arise when justice requires that law of some outside jurisdiction - not necessarily a foreign State - be applied in a particular case.

For example, to cite a famous English situation, when couples left England to be married in Scotland where the marriage laws were less stringent, and question arose whether the validity of marriage should be determined by English Law or by Scottish Law. The English Courts held that the laws of Scotland should apply. In some exceptional cases, rules of private international law may become rules of public international law when they are incorporated in the international treaties.

Conclusion

On the basis of the above definitions one may conclude that International law is constantly evolving body of norms that are commonly observed by the members of international community in their relation with one another. These norms confer rights and impose obligations upon States and, to a lesser extent, upon international organizations and individuals'. The above view takes into account both the new and classic definitions of international law.

The classic view is supported by the fact that international law is primarily a system regulating the rights and duties of States and that is why it is also termed as the law of nations. The modern view is supported by the fact that international law is a living and expanding code. International law is a law in its true sense. As compared to municipal law it is definitely weak; nevertheless it is law.

An emerging system of sanctions for the enforcement of international law, recourse to law-making treaties and certain aspects of the activities of international organisations indicating the emergence of legislative process, recognition of certain rules having the character of jus cogens, etc. are some of the indications of a growing maturity in the international legal order.

Furthermore, international law may now properly be regarded as a complete system. By this is meant not that there is always a clear and specific legal rule readily applicable to every international situation, but that every international situation is capable of being determined as a matter of law, either by the application of specific legal rules where they already exist, or by the application of legal rules derived by the use of known legal techniques, from other legal rules or principles.

Oppenheim remarked: It is both practically inconvenient and also contrary to best juristic thought to deny its (international law) legal character. Sir Cecil Hurst remarked that the modern conception of instate is itself the creation of international law and it is by the canons of international law that the rights and duties of a State are defined.

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