Nature, Scope and Subjects: A Bird’s Eye View
1. Meaning: The expression ‘International Law’ was coined for the first time by Jeremy Bentham in 1780. The term International Law is synonymous with the term law of nations. It is a body of rules and principles which regulate the conduct and relations of the members of the international community. International law is the set of rules generally regarded and accepted as binding in relations between states and nations. It serves as the indispensable framework for the practice of stable and organized international relations. International law differs from national legal systems in that it primarily concerns nations rather than private citizens.
2. Aim Of International Law: International law aims to achieve:-
· International peace and security and
· Promotion of friendly relations among the member states (the members of International Community i.e. United Nations).
3. Definition: It is very difficult to define International Law. There are many definitions given by the scholars, subject experts and international jurists. Prominent among them are given below:
• 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 intercourse with each other.
• J.L. 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.
• Torsten Gihl- The term International Law means the body of rules of law, which apply within the International Community or society of Sates.
· In the Queen v. Keyn, 2 Ex. D. 63, 153, 154 (1876). LORD COLERIDGE, C.J., defined International law in the following words: “The law of nations is that collection of usages which civilized States have agreed to observe in their dealings with one another.”
· Gray says, International law or the Law of Nations is the name of a body of rules which according to their usual definitions regulate the conduct of states in their intercourse with each other.
4. Public And Private International Law: International law may further be broken down as public or private. Public International law covers the rules, laws and customs that govern and monitor the conduct and dealings between nations and/or their citizens. The UN deals largely with public international law. Private International law (Conflict of laws) handles disputes between private citizens of different nations.
Public international law concerns the treaty relationships between the nations and persons which are considered the subjects of international law. Norms of international law have their source in either:
· custom, or customary international law (consistent provincial practice accompanied by opinio juris),
· globally accepted standards of behaviour (peremptory norms known as jus cogens or ius cogens), or
· codifications contained in conventional agreements, generally termed treaties.
Article 13 of the United Nations Charter obligates the UN General Assembly to 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). Public International Law is commonly known as International Law or Law of Nations. As discussed earlier, it regulates the relations among the members of international community which includes individuals also.
Private International Law on the other hand is that branch of International Law, which determines or decides law applicable to the disputes or issues involving more than one nation and determines the court having jurisdiction to decide the issue. Private International Law is essentially a part of municipal law. Dicey calls it ‘Conflict of Laws’ since it deals with rules regulating cases in which municipal laws of different states or nations come into conflict. Such conflicts may arise with regard to domicile, marriage, divorce, wills, contracts etc. Hence, it6 is also called as inter-municipal law.
5. Is International Law A True Law….? There had been a great controversy as to the question, whether international law is a law or not. Some answered the question in affirmative while others in negative. These two views can be explained as under-
Not A Law- Supporters of this view are-
• John Austin- a leading English writer on Jurisprudence answered the question in negative. According to him, International Law is not true law, but a code of rules and conduct of moral force only. He holds that International Law is no law as it does not emanate from a law giving authority and has no sanction behind it. Austin described International Law as positive international morality consisting of opinion or sentiments current among nations generally.
• Hobbes And Pufendorff- also answered the question in negative by saying that there is no positive law of nations properly invested with true legal force and binding as the command of a superior.
· Holland- observed that International Law differed from ordinary law and not supported by the authority of a state. According to him, the law of nations is but private law ‘writ large’. In this view of the matter, he called “International Law as the vanishing point of Jurisprudence”. According to him, rules of International Law cannot be kept into the category of law because it lacks sanction, which is an essential element of municipal law.
• Jeremy Bentham And Jethro Brown are the other prominent jurists who also deny the legal character International Law.
International Law Is A Law- supports of this view are-
• Hall And Lawrence on the other hand answered the question in affirmative. According to them, International Law is habitually treated and enforced as law, like certain kind of positive law, it is derived from custom and precedent which form a source of International Law.
• Pitt Cobbett observed that International Law must rank with law and not with morality.
• Sir Frederick Pollock writes the only essential conditions for the existence of law are the existence of political community and the recognition by its members of settled rules binding upon them in that capacity. International Law seems on the whole to satisfy these conditions.
Thus it is clear from the above discussion that the solution for the above question depends upon the definition of law, which one may choose to adopt.
6. Subjects Of International Law- The word ‘subject’ literally means ‘under rule, jurisdiction or control’. It is an object, which is subject to control and governance. In other words, subject is an object (living or non-living) over which law confers certain rights and duties. Municipal law or state law provides for certain rights and duties to individuals in the state, so individuals are called subjects of state law. Similarly, International Law is concerned with the rights and duties of the nations or states. There are three theories as to the subjects of International Law as explained below-
· States alone are the subjects of International Law
· Individuals alone are the subjects of International Law
· States are the main subjects of International Law but to a lesser extent individuals and certain non-state entities are also subjects of International Law.
1. States Alone Are The Subjects Of International Law- According to this theory, states alone are the subjects of International Law. The supporters of this theory opined that international law regulates the conduct of states and states alone are the subjects of international law.
· Prof. L. Oppenheim, strong supporter of this theory holds that, since the law of nations is primarily a law between states, states are, to that extent, the only subjects of the law of nations.
· Percy E. Corbett opined that, states are the only subjects of international law and individuals are only incumbents of rights and duties at international law in so far as they are objects and not subjects.
Criticism- This theory is subject to criticism on the ground that it failed to explain the cases of slaves and pirates. Under international law, slaves have been conferred some rights by the community of states. Similarly, pirates are treated as the enemies of mankind and states may punish them for piracy.
2. Individuals Alone Are The Subjects Of International Law- According to this theory, the duties and rights of states are only the rights and duties of men who compose them. According to this theory, state does not mean mud but men.
· Prof. Kelsen is the chief exponent of this theory; he is of the opinion that, in international law, the duties of the states are ultimately the duties of the individuals. There is no difference between international law and state/municipal law. Both laws are made to apply to individuals.
· The Nuremberg Tribunal, too, has held that international law imposing duties and liabilities upon individuals as well as upon states has long been recognized. Individuals can be punished for violation of international law. Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced. The orthodox view of the positivists that the states alone are the subjects of international law did not find support in the 20th century.
Criticism- Kelsen’s view appears to be logically sound. But so far as the practice of the states is concerned it is seen that the primary concern of the international law is with the rights and duties of the states. From time to time certain treaties have been entered into which have conferred certain rights upon individuals. Although the Statute of the International Court of Justice adheres to the traditional view that only states can be parties to international proceedings.
3. States, Individuals And Certain Non-State Entities Are The Subjects Of International Law- The third view not only combines the first and second views but goes a step ahead to include international organizations and certain other non-state entities as subjects of international law. This theory appears to be far better than the first two views. Following arguments may be put forward in support of this view:
· At present, there are several treaties, which conferred on individuals certain rights and duties. For example, International Covenants on Human Rights.
· The Permanent Court of International Justice in Danzing Railways Official Case [PCIJ (11928) Services B, No. 15] laid down that, in any treaty, the intention of the parties is to confer on some individuals, certain rights, then international law will recognize such rights and enforce them.
· In 1949, General Convention on the Prisoners of War conferred on the prisoners, certain rights.
· The Nuremberg and Tokyo Tribunals propounded the principle that international law may impose obligations directly upon the individuals. As observed by the Nuremberg Tribunal, “crimes against international law are committed by men, not by abstract entities and only by punishing individuals who commit such crimes can the provisions of international law be enforced”.
· The Genocide Convention of 1948 has imposed certain duties directly upon the individuals. According to this Convention, persons guilty of crime of genocide may be punished, no matter whether they are the heads of the state, high officials or ordinary individuals.
· By virtue of new trend or movement developed in the international field, certain rights are conferred on individuals even against the states. The best example on this point is, The European Convention on Human Rights, 1950.
· It is now generally agreed that international organizations are also subjects of international law. In this connection the advisory opinion of the International Court of Justice in the case of “Reparation for Injuries Suffered in the Services of United Nations” may be cited. In this case the ICJ decided that the United Nations is an international person under international law.
In the words of the Court, “…………..what does it mean is that it (U.N.) is a subject of international law and capable of possessing rights and duties and it has capacity to maintain its rights by bringing international claims.”
· With regard to international criminal law, the law-making treaties have imposed certain obligations upon the individuals and the states have consented to it. In this connection, Narcotic Drugs Convention, 1961, Hague Convention for the Suppression of Unlawful Seizure of Aircrafts, 1970 etc. deserve special mention.
· There are certain international treaties with regard to minorities. These treaties have conferred upon minorities certain rights. The example of Articles 297 and 304 of the Treaty of Versailles, 1919, may be cited.
1. Dr. S.K. Kapoor; International Law and Human Rights; published by Central Law Agency, Allahabad, 15th Edition 2004
2. Dr. Rega Surya Rao; Lectures on Human Rights and International Law, published by Asia Law House, Hyderabad, New Edition 2005
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