Nature and Development of International Law:
International law is a system of treaties and agreements between nations that
governs how nations interact with other nations, citizens of other nations, and
businesses of other nations.
International law typically falls into two different categories.
Private international law
- Private international law
- Public international law
deals with controversies between private entities,
such as people or corporations, which have a significant relationship to more
than one nation. For example, lawsuits arising from the toxic gas leak in
India from industrial plants owned by Union Carbide, a U.S. corporation would
be considered a matter of private international law.
Public international law
concerns the relationships between nations.
These include standards of international behavior, the laws of the sea, economic
law, diplomatic law, environmental law, human rights law, and humanitarian law.
Some principles of public international law are written, or codified
series of treaties, but others are not written down anywhere. These are known as
laws, and nations consent to them by doing nothing.
International law is sum of rules accepted by states and to maintain their
It is the body of rules regarded by nations of world binding relations with each
other and compromise rights and duty of every sovergin state.
According to article 38 of statute of international court of justice it is a law
that have rules governing relations between states
According to J.G starke : It is that body of law which states feel themselves
bound to observe and therefore do commonly observe relations with each other it
- Law relating to functioning of international institution or their
relations with each other and relations with states.
- A body of rules established by customs or treaty to bind relations with
- Certain rules of law relating to individuals and non state as rights and
International law is an independent system of law existing outside the legal
orders of particular states. It differs from domestic legal systems in a number
of respects. For example, although the United Nations (UN) General Assembly,
which consists of representatives of some 190 countries, has the outward
appearances of a legislature, it has no power to issue binding laws.
resolutions serve only as recommendations- except in specific cases and for
certain purposes within the UN system, such as determining the UN budget,
admitting new members of the UN, and, with the involvement of the Security
Council, electing new judges to the International Court of Justice (ICJ). Also,
there is no system of courts with comprehensive jurisdiction in international
The ICJ’s jurisdiction in contentious cases is founded upon the consent of
the particular states involved. There is no international police force or
comprehensive system of law enforcement, and there also is no supreme executive
authority. The UN Security Council may authorize the use of force to compel
states to comply with its decisions, but only in specific and limited
circumstances; essentially, there must be a prior act of aggression or the
threat of such an act. Moreover, any such enforcement action can be vetoed by
any of the council’s five permanent members.
Positivism’s influence peaked during the expansionist and industrial 19th
century, when the notion of state sovereignty was buttressed by the ideas
of exclusive domestic jurisdiction and nonintervention in the affairs of other
states—ideas that had been spread throughout the world by the European imperial
In the 20th century, however, positivism’s dominance in international
law was undermined by the impact of two world wars, the resulting growth of
international organizations- e.g., the League of Nations, founded in 1919, and
the UN, founded in 1945—and the increasing importance of human rights. Having
become geographically international through the colonial expansion of the
European powers, international law became truly international in the first
decades after World War II, when decolonization resulted in the establishment of
scores of newly independent states.
The varying political and economic interests
and needs of these states, along with their diverse cultural backgrounds,
infused the hitherto European-dominated principles and practices of
international law with new influences.
The development of international law—both its rules and its institutions—is
inevitably shaped by international political events. From the end of World War
II until the 1990s, most events that threatened international peace and security
were connected to the Cold War between the Soviet Union and its allies and the
U.S.-led Western alliance. The UN Security Council was unable to function as
intended, because resolutions proposed by one side were likely to be vetoed by
The bipolar system of alliances prompted the development of regional
organizations—e.g., the warsaw pact organized by the Soviet Union and the North
Atlantic Treaty Organization (NATO) established by the United States—and
encouraged the proliferation of conflicts on the peripheries of the two blocs,
including in Korea, Vietnam, and Berlin. Furthermore, the development of norms
for protecting human rights proceeded unevenly, slowed by sharp ideological
International law and Municipal law:
In principle, international law operates only at the international level and
not within domestic legal systems:
a perspective consistent with positivism, which recognizes international law and
municipal law as distinct and independent systems. Conversely, advocates
of natural law maintain that municipal and international law form a single legal
system, an approach sometimes referred to as monism. Such a system, according to
monists, may arise either out of a unified ethical approach emphasizing
universal human rights or out of a formalistic, hierarchical approach positing
the existence of one fundamental norm underpinning both international law and
In most civil-law countries, the adoption of a treaty is a legislative act. The
relationship between municipal and international law varies, and the status of
an international treaty within domestic law is determined by the
country’s constitutional provisions. In federal systems, the application of
international law is complex, and the rules of international law are generally
deemed to be part of the federal law. Although a treaty generally becomes
operative only when it has been ratified by a national legislature, EU countries
have agreed that regulations and decisions emanating from EU institutions are
directly applicable and enforceable without the need for enabling
legislation—except for legislation permitting this form of lawmaking, which is
adopted upon the country’s entry into the union.
Sources of International Law:
Sources from international law was gathered
Article 38 (1) of the international statute identifies three sources of
international law: treaties, custom, and general principles. Because the system
of international law is horizontal and decentralized, the creation of
international laws is inevitably more complicated than the creation of laws in
The three sources are:
- General Principals Of Law
A set of rules to interpret treaties has evolved. A treaty is expected to be
interpreted in good faith and in accordance with the ordinary meanings of its
terms, given the context, object, and purpose of the treaty. Supplementary means
of interpretation and consideration of the circumstances surrounding the
conclusion of the treaty, may be used when the treaty’s text is ambiguous.
certain cases, a more flexible method of treaty interpretation, based on the
principle of effectiveness coupled with a broader-purposes approach (i.e.,
taking into account the basic purposes of the treaty in interpreting a
particular provision), has been adopted. Where the treaty is also the
constitutional document of an international organization, a more programmatic
or purpose-oriented approach is used in order to assist the organization in
coping with change.
A purpose-oriented approach also has been deemed appropriate for what have been
described as “living instruments,” such as human rights treaties that establish
an implementation system; in the case of the European Convention on Human
Rights of 1950, this approach has allowed the criminalization of homosexuality
to be regarded as a violation of human rights in the contemporary period
despite the fact that it was the norm when the treaty itself was signed.
The International statute refers to international custom, as evidence of
a general practice accepted as law, as a second source of international law.
Custom, whose importance reflects the decentralized nature of the international
system, involves two fundamental elements: the actual practice of states and the
acceptance by states of that practice as law.
The actual practice of states
(termed the “material fact”) covers various elements, including the duration,
consistency, repetition, and generality of a particular kind of behaviour by
states. All such elements are relevant in determining whether a practice may
form the basis of a binding international custom.
The ICJ has required that
practices amount to a “constant and uniform usage
” or be “extensive and
” to be considered binding. Although all states may contribute
to the development of a new or modified custom, they are not all equal in the
process. The major states generally possess a greater significance in the
establishment of customs.
For example, during the 1960s the United States and the Soviet Union played a
far more crucial role in the development of customs relating to space law than
did the states that had little or no practice in this area. After a practice has
been established, a second element converts a mere usage into a binding
custom—the practice must be accepted.
General principles of law:
A third source of international law identified by the ICJ’s statute is: the
general principles of law recognized by civilized nations.
essentially provide a mechanism to address international issues not already
subject either to treaty provisions or to binding customary rules.
Such general principles may arise either through municipal law or through
international law, and many are in fact procedural or evidential principles or
those that deal with the machinery of the judicial process:
e.g., the principle, established in Chorzow Factory (1927–28), that
the breach of an engagement involves an obligation to make reparation.
Accordingly, in the Chorzow Factory case, Poland was obliged to pay compensation
to Germany for the illegal expropriation of a factory.
Is International law a true law:
Controversy is international law or not a law divergent definition of word LAW
given by different jurist
According to some of jusrist view was law is command of sovergeign, political
authority and cant be included in law. International law has some kind of
Austin’s View – International law is not a true law:
According to Austin, law is the command of the sovereign punished by sanctions
in case the command is violated by the individual. There must be a legislative
authority enacting the rule of conduct and enforcing physical sanction. So based
on what he said, it can be concluded that any rule which is not enacted by any
superior or legislative authority, cannot be regarded as a law and moreover, if
laws are violated, sanctions mustbeimposed.
Based on that, it can be said that rules are only morally and ethically valid if
they aren’t issued by any sovereign authority. If we apply this theory to
International law, we will see there is no legislative power over the society,
based on which Austin concluded that International laws are merely based on
ethics and morality and are not true law.
Oppenheim’s View – International law:
According to him, laws are nothing but a body of rules for human conduct within
a community, which can be enforced by an external power if there’s a common
consent of the community for the same. Based on what he said, we can conclude
that, firstly, there must be a community, secondly, a body of rule of conduct
governing the community must be there and thirdly, common consent among the
community for the rules to be enforced power must be present. From this, we can
conclude that it’s not necessary that rules should be enacted by a legislative
authority within the community for them to be legally binding.
International law is a true law as there are jurisdiction power and scope of
international law is expanding. there are machinery for decisions. There are
sanctions behind international law so it is a true and proper law.
Written By: Nishtha Kareer