International Law

Introduction

Although rules of international law have developed systematically only in the last 5 centuries, some of them have roots in antiquity. The mutual relation of state during the ancient period was governed by certain rules based on the law of nature. Jews, Greek, Romans, and Hindus had practiced rules regarding war and peace of Greeks who civilization was quite advanced, set an example to the future that independent states can live in a community in which their international relationships is governed by certain rules and customs of the member of that community.[1]

Origin of International Law

The modern study of international law starts in the early 19th century, but its origin go back at least to the 16th century and Alberico Gentili, Francisco de Vitoria, and Hugo Grotius, The “Father of International Law.”

Definition Of International law

A definition of international law is given by different eminent persons. But I stated only one of them which are as follows:

Hall and Lawrence: Which says that international law is the is followed and enforced and just like positive law it is Deprived of custom and precedent.

Nature of international law

  • Status of international law is a very controversial aiming jurist.
  • The disagreement is based on the core in the definition of law itself.

In the present scenario

  • There is international legislation created nowadays as treaties and conventions.
  • These legislations have a binding force behind them.
  • State consider themselves bound by legislation.
  • The international community and the United Nation can act against violations of this legislation.

Why international law is weak law?

Ans. International law is a weak law because from my observation;

  • Not as effective and efficient municipal law
  • International law is binding only of the state agrees to its first.
  • Absence of real law power of the courts at the international level to enforce its decision.

Basis of International law

There is 5 basis of international law which are as follows:

  • Naturalist theory – Which says that there might be some reason why the law. (For example – morality, universal principle, religious, etc.)
  • Positivism theory – says that positive law is made by humans. According to Jeremy Bentham, he says that international law is an agreement between sovereigns and can be distinguished into two categories i.e. Public and private.
  • Auto limitation theory – voluntary restriction or auto limitation of the sovereignty of states by giving their assent to international law.
  • Fundamental theory– every man is entitled to basic right i.e. the right to life, dignity, etc. [2]

Law of Treaties in international law

  • Treaties is a formal written agreement between actors of international law. Treaties are also known as a covenant, convention, etc.
  • The codified law on treaties is (VCLT), in the preamble which consists of 8 parts and 85 articles. It shall come into force on 27 January 1980.
  • A non-sovereign state can also conclude treaties, colony, trust territory can also be a part of the treaty.[3]

Treaties can be categorized into two categories:

  • Statue treaties
  • Treaty contracts

Pacta Sunt Servanda

  • This means that states are bound to fulfill in good faith the obligation assumed by them under treaties.
  • Article 27 of VCLT strengthens the rule by saying that “No party to a treaty might attempt to justify any of its international treaty obligations by an invocation of its internal law.
Exception of Pacta Sunt Servanda
  • When a new state comes into existence as a result of revolt.
  • Treaty obligation which is related to property ceded or merged.

How International treaties are formed?

  • Appointment of representation by contracting state
  • Negotiation and adoption
  • Signature
  • Ratification
  • Accession or adhesion
  • Entry into force
  • Registration or publication.

Pacta Tertis Nec Nocent nec prosunt

  1. This means that treaties neither obligate nor benefit a third party.
  2. A treaty binds the parties and only the parties it does not create an obligation for a third state.
  • Exceptions
  1. The third-party accepts the obligation (via a collateral agreement) in writing (Article 35)
  2. Rights for the third stage can be created (article 36)
  3. International customs created by treaty binding upon third states. ( article 38)[4]

Sources of international law

The important sources of international law which are as follows:

  1. International convention
  2. International custom
  3. A general principle of law recognized by a civilized nation
  4. Judicial decision and juristic work
  5. Equity and conscience and justice.[5]
  • International Customs: which means as evidence of a general practice accepted as law:

Two conditions are as follows:

  1. There should b sufficiently uniform state practice.
  2. There should be a belief that such practice is obligatory. ( opinion Juris).

Settlement of international dispute

This means disagreement on a point of law or fact, a conflict of legal views or of interest between states.

Article 2 (3) of union charter says that members have to settle disputes by peaceful means.

Methods of International law

The method of international law are as follows:

  1. Pacific means which is defined in chapter 6 of the United Nations charter which defined negotiation, good offices, arbitration, judicial settlement, conciliation, or other peaceful means.
  2. Compulsive means which is defined in chapter 7 of the United Nations charter which defined complaints, retorison, hostile embargo, war, etc.
  • Asylum in International law: It is originated from asylum which means inviolable place giving protection own country prosecution.

Case law

S.S Lotus case( France vs. turkey)[6]  On August 2, 1926, a French ship named “ Lotus” was going to Constantinople and the name of the officer of the ship was Lieutenant deman. On the same day, a Turkish ship named “Boj Kurt” the officer of which was Hassan Bey, was passing through the open sea unfortunately at a distance of about six miles from the cape of singri, those to ships collided with the result that the ship named” Boj Kurt” along with the eight Turkish nationals drowned. There the Turkish officers enquired from sir deman about the accident and asked him to adduce evidence. On 5th August 1926, without any prior information. Lt. Deman and Hassan bey were arrested.

Conclusion

Article 2 (3) of union charter says that members have to settle disputes by peaceful means. There is international legislation created nowadays as treaties and conventions. Therefore, these legislations have a binding force behind them. Moreover, States consider them bound by legislation. The international community and the United Nation can act against violations of this legislation. However, they are not as effective and efficient municipal law. In other words, international law is binding only of the state agrees to its first. Absence of real law power of the courts at the international level to enforce its decision.

From these practices, lesson learn thee is yet another dimension sometimes referred to legitimacy, transparency, equality, with certain substantive values and normative expectations. The question that comes in my mind is international law is a law or not so from my observation international law generated due to the divergent definition of law given by the jurist. As compared to municipal law international law somewhere lacks effective legislative machinery. International law is a weak law because it lacks potent judiciary power. Moreover, the jurisdiction of the international court of justice is very limited. The term law cannot be limited to rules of conduct enacted by a sovereign authority. In some countries like the USA and UK international law is treated as a part of their own law.


Author:

harshil munjal Harshil Munjal | JECRC University, Jaipur


References

[1] Oppenheim,’ international law’, vol.1, eight editions, page.75

[2] For an introduction on different sources of international law, refer to writing center handout, A guide to the basics of international law. https://www.law.georgetown.edu/w-p-content

[3] Lawrence Lessig, International law of treaties(2nd edition,1996)

[4] Treaty of Pacta Tertis Nec Nocent Nec prosunt, Maxwell, 1929,

[5] U.N. Convention on the international law, 1982 U.N.T.S.397

[6] (1921) S.A. No. 10(W.C.R.20).

 

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