What is International Law Types, Nature and Sources Of International Law
What is the meaning of International law?
Bentham in 1780 used the term international law for the first time. International law is the body of rules and principles which regulate the relations among the members of international community. Hugo Grotius is the father of international law. It is said that International law is the vanishing point of jurisprudence.
What is the meaning of International law?
What are the basis of International law?
What are the sources of International law?
What are the types of International law?
What are the examples of International law?
Whether International law is a true law or not (Nature)?
Definition
Prof.L.Oppenhim - The 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 eachother.
This definition was criticized for using the word 'civilized states' as earlier only christian states were called as civilized states.
Afterwards , civilized word was removed.
In 1992 , a new definitionwas given- International law is the body of rules which re legally binding on state in their intercourse with eachother.
But now international law is applicable on non-state entities not only restrained to states only.
According to Schwarzenberger- International law is the body of legal rules which apply between sovereign states and such other entities as have been granted as international personality.
What are the basis of International law?
1. Naturalistic Theory- It says there is a higher reason why the law is the law. (e.g. morality, universal principles , religious etc).
2. Positivism Theory- Positive law is made by humans. International law is an agreement between sovereigns and can be divided into 2 categories i.e. public and private, the former referring to states and the latter to individuals.
3. Consent Theory- State consent is the method whereby states identify and acknowledge the rules they consider binding upon themselves.
4.Auto Limitation Theory- Voluntary restriction or auto limitation of sovereignity of states by giving their assent to international law.
5. Fundamental Rights Theory- Man is entitled to basic rights i.e. right to life, dignity etc.
6. "Pacta sunt serranda" which means treaties shall be complied with.
What are the sources of international law?
Article 38 of statute of International court of justice recognizes 6 kinds of sources -
1. International conventions.
2.International customs.
3.General principles of law recognized by civilized state.
4. Decision of judicial or arbitral tribunals.
5. Juristic work.
6. Decisions of organs of International institutions.
1. International conventions -
It can be divided into 3 categories - Protocol, Treaty(main source), Agreement.
Article 2 of Vienna convention gave definition of treaty in 1969. " Treaty is an agreement whereby 2 or more states or non state entities seek to establish relationship between them.
Difference between Agreement and treaty is Agreement is between 2 or more states whereas treaty is between states and non state entities.
Treaties are further divided into 2 categories
1. Law making treaties - It is the direct source of international law and is between large number of states.
2. Treaty contracts - It is between 2 or more states and has binding effect only on those who are party to contract.
2. International Customs
Customs can be defined as habit repeated for a long time, it then becomes a usage. These are considered as slow source and not accepted these days.
3. General principles of law recognized by civilized states.
In case of R. Key- principle of justice, equity and good conscience was recognized. Court ruled that International law is based on justice , equity and good conscience .
In case of United States v. Schooner
In this case slavery system was abolished and such abolishion was internationally aceepted.
Other sources such as decision of judicial and arbitral tribunals they act as precedent and juristic work i.e. when experts writes on some rule of law it also becomes international law.
We can now make an order of use of sources of international law
At first, International convention to given first priority.
Secondly, international customs if conventions are not present.
Thirdly, general principles of recognized by civilized nations.
Last, judicial decisions and juristic opinion will be followed.
What are the types of international law?
1.Public International law
2.Private International law
3. Superanational International law.
What are the examples of International law?
It includes -
- International human rights laws.
- International criminal law.
- Air laws.
- Law on outer space.
- Laws of asylum.
- Laws of extradition.
- Laws of warfare. etc.
Whether International law is a true law or not (nature)?
Austein view- International law is not a true law as law is the command of sovereign punished by sanctions in case the command is violated by the individuals.
So, based on what he said , it can concluded that any rule which cannot be enacted by any superior or legislative authority, cannot be regarded as law and moreover , if laws are violated , sanctions must be imposed.
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 International laws are merely based on ethics and morality and are not true law.
Oppenheim's View- 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 its not necessary that rules should be enacted by a legislative authority within the community for them to be legally binding.
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