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Published : August 01, 2016 | Author : Shrimali Mahima
Category : International Law | Total Views : 513 | Rating :

  
Shrimali Mahima
Student of Government Law College, Mumbai.
 

A Synopsis of International Law

International Law is very large and wide law (its name also denote its widened) it is difficult to compile it in a single article or in a book. But I tried my best to make the summary of International Law. This article tells about definitions of international law, because to create the exact definition or a single definition is very difficult. Moreover, this article also gives answer to our questions that How International Law come? Why there was need of it? Sources through which it come in force like Treaties, Customs, General Principles etc. and Types of International Law.

Definitions
Acc. to Legal Dictionary-
“The body of law that governs the legal relation between or among states or nations.”

Acc. to Business Dictionary-
“Body of legal rules governing interaction between sovereign states and the rights and duties of the citizen of sovereign states towards the citizens of other sovereign state.”

Acc. to Globalization101-
“International Law is simply the set of rules that countries follow in dealing with each other.”

Acc. to Coleridge-
“International Law or Law of nations is the collection of usages which civilised states have agreed to observe in their dealing with each other.”

Acc. to Alverstone-
“International Law is the aggregate of the rules to which nations have agreed to conform in their conduct towards each other. “

Acc. to Lawrence-
“The rules which determine the conduct of the general body of civilized states in their mutual dealing.”

Acc. to Kelson and Gray-
“Law of nations is the name of body of rules which, according to theusual definition, regulate the conduct of states in their intercourse with each other.

Acc. to U.S. Jurist-
“International Law governs relation between independent states. Therules of law binding upon states from their own free will as express in conventions and established inorder toregulate the relation between there co-existingindependent communities or with a view to the achievement of common aims.”

Acc. to Huges-
“International Law is the body of principles and rules which civilized states consider as binding upon them in their mutual relation.”

Historical Aspect Of Law-

International Law has existed since the mid 19thcentury. In the 20thcentury, the two World Wars and the formation of League of Nations contributed to accelerate this process. But after the failure of Treaty of Versailles and World War II, League of Nations was replaced by United Nations. Similarly The Permanent Court of Justice which was created in 1920 under supervision of League of Nations ceased during World War II and officially dissolved in 1946 and the International Court of Justice came into force in 1945. And other international norms and laws have been established through international agreements and international organization for peace and security. The development and consolidation of such conventions and agreements has proven to be of great importance in the realm of international relations.

Sources of International Law-

These are more difficult questions than one might expect. In particular, there is no “CODE OF INTERNATIONAL LAW”. International law has no Parliament and nothing that can really be described as legislation. While there is an International Court of Justice and a range of specialized international courts and tribunals, their jurisdiction is critically dependent upon the consent of States. The result is that international law is made largely on a decentralized basis by the actions of the 192 States which make up the international community.

It is generally accepted that the sources of international law are listed in the Article 38(1) of the Statue of the INTERNATIONAL COURT OF JUSTICE.

The Statue Of Icj Art 38, Listed These Sources—

Which the Court shall apply-
a) international conventions, whether general or particular, establishing rules expressly by the contesting states;
b) international custom, as evidence of a general practice accepted as law;
c) the general principles of law recognized by civilized nations;
d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
Some of the sources of International law are as follows-

1)Treaties

International conventions are generally referred to as treaties. Treaties are written agreements between States that are governed by international law. Treaties are referred to by different names, including agreements, conventions, covenants, protocols and exchanges of notes. If States want to enter into a written agreement that is not intended to be a treaty, they often refer to it as a Memorandum of Understanding and provide that it is not governed by international law. Treaties can be bilateral, multilateral, regional and global. Treaties are sometimes referred to by the place and year of adoption, e.g. the 1969 Vienna Convention. If State becomes a signatory to such a treaty, it is not bound by the treaty, but it undertakes an obligation to refrain from acts which would defeat the object and purpose of the treaty. Strictly speaking a treaty is not a source of law so much as a source of obligation under law. Treaties are binding only on States which become parties to them and the choice of whether or not to become party to a treaty is entirely one for the State – there is no requirement to sign up to a treaty.

Why is a treaty binding on those States which have become parties to it?
The answer is that there is a rule of customary international law –pactasuntservanda– which requires all States to honour their treaties. The general rule is that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose. The preparatory work of the treaty and the circumstances of its conclusion, often called the travaux preparatoires, are a supplementary means of interpretation in the event of ambiguity.

Example-
North Atlantic Treaty Organization
The European Coal and Steel Community Organization

League of Arab State

2) Customary Laws

Customary law as this is both the oldest source and the one which generates rules binding on all States. A rule of customary law, e.g., requiring States to grant immunity to a visiting Head of State, is said to have two elements. First, there must be widespread and consistent State practice – i.e. States must, in general, have a practice of according immunity to a visiting Head of State. Secondly, there has to be what is called“opiniojuris”,usually translated as “a belief in legal obligation; i.e. States must accord immunity because they believe they have a legal duty to do so. In theory, opiniojuris is a serious obstacle to establishing a rule as custom because it is extremely difficult to find evidence of the reason why a State followed a particular practice. In practice, however, if a particular practice or usage is widespread, and there is no contrary State practice proven by the other side, the Court often finds the existence of a rule of customary law. It sometimes seems to assume that opiniojuris was satisfied, and it sometimes fails to mention it.

Therefore, it would appear that finding consistent State practice, especially among States with the most interest in the issue, with minimal or no State practice to the contrary, is most important.

Undisputed examples of rules of customary law are-
(a) giving foreign diplomats criminal immunity;
(b) treating foreign diplomatic premises as inviolable;
(c) recognizing the right of innocent passage of foreign ships in the territorial sea;
(d) recognizing the exclusive jurisdiction of the flag State on the high seas;
(e) ordering military authorities to respect the territorial boundaries of neighbouring States; and
(f) protecting non-combatants such as civilians and sick or wounded soldiers during international armed conflict.

3) General Principles Of Law-

General principles of law recognized by civilized nations – the third source – are seldom mentioned in judgments. They are most often employed where the ICJ or another international tribunal wants to adopt a concept such as the legal personality of corporations (example. in the Barcelona Traction Co. case (1970)) which is widely accepted in national legal systems. But international law seldom adopts in its entirety a legal concept from a particular national legal system; instead the search is for a principle which in one form or another is recognized in a wide range of national legal systems. These are general principles that apply in all major legal systems. An example is the principle that persons who intentionally harm others should have to pay compensation or make reparation. General principles of law are usually used when no treaty provision or clear rule of customary law

Example-

Story, J observed that- Law of Nation may be deducted, first from the general principles of right and justice, applied to the concerns of individuals.

4) Subsidiary Means For Determination-

Subsidiary means are not sources of law; instead they are subsidiary means or evidence that can be used to prove the existence of a rule of custom or general principle of law.

Aticle 38 lists only two subsidiary means-
. The teaching (writings) of the most highly qualified publicists ( international law scholars
·Judicial decisions of both international and national tribunals if they are ruling on issues of international law.

4.(a) Writings and Legal Scholarship-
Writings-
The writings of international lawyers may also be a persuasive guide to the content of international law but they are not themselves creative of law and there is a danger is taking an isolated passage from a book or articleand assuming without more that it accurately reflects the content of international law. Writings of highly qualified publicists do not include law student articles or notes or doctoral theses.

Legal Scholarship-
Legal scholaarship, on the other hand, is not really authoitative in itself, but maydescribe rules of law that are widely followed around the world.

4.(b) Judicial Decisions-
Article 38 (1) (d) refers to judicial decisions as a subsidiary means for the determination of rules of law. In contrast to the position in common law countries, there is no doctrine of binding precedent in international law. Indeed, the Statute of the ICJ expressly provides that a decision of the Court is not binding on anyone except the parties to the case in which that decision is given and even then only in respect of that particular case (Article 59).Nevertheless, the ICJ refers frequently to its own past decisions and most international tribunals make use of past cases as a guide to the content of international law so it would be a mistake to assume that “subsidiary” indicated a lack of importance.

Other Sources-
The list of sources in Article 38 of the Statute is frequently criticised for being incomplete. In particular, it makes no mention of the acts of the different organs of the United Nations. Today there can be no doubting the importance of those acts in shaping international law, although they perhaps fit within the system of Article 38 better than it sometimes Imagined The United Nations General Assembly has no power to legislate for the international community; its resolutions are not legally binding. However, many of those resolutions have an important effect on the law-making process. Some resolutions are part of the treaty making process, attaching a treaty text negotiated in the framework of the United Nations and recommended to the Member States by the Assembly.

Kinds of International Law

International law is further divided into three parts-
a.) Public International Law
b.) Private International Law
c.) Supranational Law

A) Public International Law

Public international law (or international public law) concerns thetreaty relationships between the nations and persons which are considered the subjects of international law. Norms of international law have their source in either: custom, orcustomary international law, globally accepted standards of behaviour, codifications contained in conventional agreements, generally termed treaties. Article 13 of the United Nations Charter obligates theUN General Assemblyto initiate studies and make recommendations which encourage the progressive development of international law and its codification. Evidence of consensus or state practice can sometimes be derived from intergovernmental resolutions or academic and expert legal opinions (sometimes collectively termed soft law).

B) Private International Law

Conflict of laws, often called "private international law" in civil law jurisdictions is less international than public international law. It is distinguished from public international law because it governs conflicts between private persons, rather than states (or other international bodies with standing). It concerns the questions of which jurisdiction should be permitted to hear a legal dispute between private parties, and which jurisdiction's law should be applied, therefore raising issues of international law. Today corporations are increasingly capable of shifting capital and labour supply chains across borders, as well as trading with overseas corporations. This increases the number of disputes of an inter-state nature outside a unified legal framework, and raises issues of the enforceability of standard practices.
Example-Increasing numbers of businesses use commercial arbitrationunder the New York Convention 1958

C) Supranational Law

Supranational law or the law of supranational organizations, which concerns regional agreements where the laws of nation states may be held inapplicable when conflicting with a Supranational legal system when that nation has a treaty obligation to a Supranational collective.

Conclusion
International law is a “living and expanding Code.”- Lord Chancellor Sankey

Hence, International Law is a body of rules and principles which regulate the conduct and relations of the members of international community. The contention that states alone are subjects of the international law is not only inconsistent with the changing character of international law but has become completely absolute and inadequate. Individualistic character of international law is being replaced by the law of social inter-dependence.

 




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