Traditional Definition of International LawOppenheim Definition
According to Prof. 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 the civilized states
in their relationship with each other.
The definition mentioned international law as the body of customary and
conventional rules. Here, customary rules are the rules which a state follows
consistently for a long period of time. For Example- Sri Lanka has been taking
water from the Palk Strait for a long period of time. And conventional rules are
those rules which two or more countries by an agreement agree to a certain set
of rules which are acceptable for them for a long period of time.
There are three components discussed in the Oppenheim definition.
- Firstly, there is a body of rules used to govern the relations between
- Secondly, the state considers these rules binding on them in their
relation with other states. And lastly, these rules are derived from customs
Mentioning International law as a 'body of rules' denotes that it is static
in nature. With ever changing human nature and interest it becomes difficult to
deal with a static body of rule. Therefore, it should be dynamic in nature and
Also, the definition mentions only states as subjects of International law.
Other subjects of International law like International Organisations,
individuals were nowhere mentioned in Oppenheim definition.
The definition including the term civilised states
was also criticised.
Here, civilised states include only Christian community states.
Criticism of Oppenheim's definition:
By referring to International Law to only civilized states without giving any
reasonable cause, the definition is creating an abnormal differentia among the
And lastly, the definition mentions only customs and treaties as sources of
International law. But, it is explicitly mentioned in Article 38 of the statute
of ICJ, that along with customs and treaties, General Principles of law are also
considered as primary sources of International law.
Torsten Gihl Definition
Later, a new definition of International law was framed by Torsten Gihl which
The term International Law means the body of rules of law, which apply within
the International Community or society of States.
Now, this definition of Gihl includes two terms such as international community
and Society of states. The term international community is itself broader in
nature because it includes the United Nations as well along with other states.
Whereas Society is states is a term which is narrow in nature.
Lord Coleridge, C.J., defined International law as:
The law of nations is that collection of usages which civilized States have
agreed to observe in their dealings with one another.
This definition of Coleridge includes the term 'collection of usages' which
means customary rules. Therefore, the definition includes only customs as a
source of International law.
Overview of the Traditional Definition of International Law
Oppenheim and other scholars' definitions mentioned only states as subjects of
International law. Other subjects of International law like International
Organisations, individuals were nowhere mentioned in the Traditional definition
of International law.
Also, as per traditional definition sources of International law are basically
customs and treaties. General Principles of law were nowhere mentioned as
sources of International law.
The definition was also restricted to civilised states i.e. Christian community
Modern Definition of International LawAs per J.G.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 also includes:
- The rules of law relating to the functioning of international
institutions or organisations, their relations with each other, and their
relations with states and individuals; and
- Certain rules of law relating to individuals and non-state entities so
far as the rights or duties of such individuals and non-state entities are
the concern of the international community.
Implications of Modern Definition
State is considered to be the primary and original subject of International law.
However, it also regulates the action of other entities as well:
Common people of any state are also believed to be the subject of
The question of whether individuals can be regarded as subjects of
international law emerged at the end of the Second World war.
At the end of second world war, Nazi official war criminals were prosecuted
by International Tribunal, also known as Neurenberg trials. The Neurenberg
Tribunal was basically formed to prosecute Nazi officials.
And it was realised that not only states but individuals also have the
responsibility under international criminal law.
Hence, aftermath of the second world war was:
Because of the aftermath of the second world war, it was realized that if
individuals have rights to possess and enforce then individuals must be
considered as one of the subjects of International law.
- Development of International Criminal law and
- Development of Human rights (UDHR, ICCPR, CEDAW)
And since then, individuals i.e. common people of any state are considered to be
subjects of international law.
For Example- Say a homosexual act was done by Mr. A in Ireland. Since homosexual
conduct is still not appreciated in Ireland, therefore, Mr. A was prosecuted for
the same. Now, Mr. A feels that his human rights have been violated. In such a
scenario, where the domestic court remedies are exhausted, Mr. A can approach
the International community like the American Court of Human rights for remedy.
The following are the pointers which an individual must keep in mind while
approaching the International Community like The European Court of Human
rights, American Court of Human rights:
We can also refer to the Kulbhushan Jadhav case, In this case an Indian naval
officer was captured by Pakistan officials. The officer was prosecuted in the
Pakistan court and no fair trial was given to him. Since, there was direct
violation of human right and also principle of natural justice was not followed,
therefore, India approached the International community i.e. International Court
of Justice (ICJ) for the remedy.
- There must be a violation of Human rights.
- Principle of natural justice is not followed.
- Domestic court remedies are exhausted.
- Non-state entities:
The entities which are not registered/recognised as states by the International
community like the United Nations are referred to as Non-state entities.
- After the second world war, Germany expelled all the Jews. Therefore,
Jews went to the International community i.e. The League of Nations to provide
them with an independent territory at Jerusalem (now Israel). The area provided
to the Jews included people such as Arabs who were already residing there. And
these Arab people were resilient in leaving that place because Jerusalem was
also considered sacred for them. Later on, Israel occupied most of the territory
and till date Palestine is not recognised as a state.
Therefore, Palestine can be considered as a non-state entity.
Another example of a non-state entity could be that of China which basically
consists of two domains- South b) Republic China and Taiwan.
Where Taiwan is considered as a non-state entity.
- International Organizations:
These are also considered as subjects of
international law as per the modern definition.
International organisations are established by states through international
agreements and their powers are limited as per the constituent document.
Example- United Nations (UN).
The powers of the United Nations are set out in the United Nations Charter of
1945. The main UN judicial organ i.e. The International Court of Justice (ICJ)has
the power to deliver binding decisions on the question of International law
which has been referred to by various states. ICJ also has the power to give
advisory opinions to the U.N.
Minorities and Indigenous people:
These groups of people are also considered as
subjects of International law.
After the first world war, the major problem which came out was to protect the
minority groups in Europe. The international community i.e. the League of
Nations assumed its responsibility in order to protect the rights of minorities
in Europe in various aspects like education, health and fair labour standards.
Indigenous people are considered to be a specific part of minority groups with
The traditional view was basically restricted in considering only states as the
subjects of international law, whereas the modern definition expanded its
subjects of international law. Individuals, international organisations,
non-state entities and minorities groups are also the subjects of international
law as per the modern definition.
Apart from this, the modern definition emphasised on the point that states feel
bound to follow the rules of conduct laid down in the body of law which is
referred to as international law. Such rules of law help in governing the
relations amongst various states and also relations between states and its
The modern definition is also considered the rights of individuals, non-state
entities, minority and indigenous people.
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