This Article is written by Falguni Ghude & this article discuss the concept of INTERNATIONAL LAW CONCEPT AND SOURCES
INTRODUCTION
International law is a wide concept with a greater scope in the international world, covering a wide range of topics that affect global affairs. International Law governs International dealing of one nation with another. International law is also known as the law of nation, the term law of nations is derived from the latin term ‘Jus Gentium’. It is however noteworthy that it is used to refer to private international law rather than public international law. it could not be considered equivalent to present public international law. Jeremy Bentham coined the term international law in 1780,which is a translation of the phrase ‘Jus Inter Gentes’ first used by Richard Zouche in 1650.
The modern international law system is a product of evolution since the past 400 years.
international law is a set of rules and regulations also treat is in some cases which are binding on both the Nations. It is an independent legal system functioning outside the legal framework of a particular state.
MEANING AND DEFINITION OF INTERNATIONAL LAW:
According to L.Oppenheim, ‘Law of nations or international law is the name for a body of customary and conventional rules which are considered legally binding by the civilized states in their intercourse with each other’.
J.G Starke defined international law as, ‘As that body of law which is composed of its greater part of principles and rules of conduct which states feel themselves bound to observe and therefore do commonly observe in their relation with each other. Sarke tried to define international law comprehensively. International law is an evolving subject. The primary subjects of international law are states but it is applicable to other subjects in certain cases.
Previously states were the only subjects of international law. Oppenheim and other writers such as Kelsen and J.L Brierly use terms international law and law of nations synonymously. The law of nations is not appropriate as international law is not only applicable to the states but also to individual and international organizations, non state entities and others.
In today’s date International Law can be defined as :
‘ A body of law which is recognised binding primarily on states and in certain cases on other subjects where their rights and duties are in concern of the international community’.
HISTORICAL PERSPECTIVE OF INTERNATIONAL LAW :
International law was much evident before the dawn of Christianity, we get to see its traces even in ancient India where there were many independent states. International Law used to regulate the conduct of these States. The two great epics of India Ramayana and Mahabharata referred to a lot of incidents where international law was followed. International humanitarian law, non execution of prisoners of war, diplomatic immunity and rules of the treaties were some International principles which could be traced from these epics.
Roman law has also influenced international law. The public international law expanded beyond Europe in the late 18th centuries; these were some instances of development of public international law.
SCOPE OF INTERNATIONAL LAW :
- International law has a wide scope; it covers various topics affecting the Geopolitics.
- It establishes rule of law to prevent conflict between the states.
- It also regulates use of force and conduct of war.
- At the same time it provides Framework for international trade.
- it promotes conduct of free and fair trade.
- International Law also regulates the activities of international organizations.
- It acts as a safeguard to all the fundamental freedoms and human rights.
SOURCES OF INTERNATIONAL LAW :
Oppenheim defines the term source of law, as a name for historical fact out of which rules of conduct come into existence. The terms ‘sources’ refer to the procedure and methods for creation of general principles of international law.
International Law governs the conduct of states and their interaction with each other.Moreover, International organizations have played an important role for development of international law over the period of time.
Every system of law has sources. International law has two types of sources namely, Traditional and Modern sources.Traditional sources of international law is article 38(1) of the statute of the International Court of Justice.This statute of International Court of Justice is similar to the statute of the Permanent Court of International Justice. Article 38(1) of the statute of the International Court of Justice States that :
The court whose function is to decide in accordance with International Court such a disputes are submitted to International Law shall apply;
(a)International conventions, whether General or particular establishing rules expressly recognised by the contesting States,
(b) International customs as evidence of general practice accepted as law, © General principles of law recognised by the civilized Nations.
(d) Subject to the provisions of article 59, judicial decisions and teachings of most highly qualified publicists of various Nations as subsidiary means for the determination of rules of law.
Another is the Modern sources of international law which includes: I] Resolution passed by the General Assembly II]Memorandum of understanding.
However, article 38 of the statute of the International Court of Justice is not exhaustive. There are various developments in the field of international law and it keeps evolving as per the time.
TRADITIONAL SOURCES :
1] INTERNATIONAL CUSTOMS –
Article 38(1) b Mentions custom as source of international law. It is one of the oldest and original sources of international law. However, custom is different from usage. For any practice to be considered as a custom it should carry following elements;
*Continuous practice : Must be practiced in continuity also in some cases practice should be for a longer period of time.
*Uniformity: There must be uniformity in practice, should be followed by everyone.
*opinio juris sive necessities : This general practice must be accepted as law. it must be acceptable and fulfill all the legal obligations.
In North Sea Continental shelf case 1969, world court observed that opinio juris is an essential element for any state practice to be considered as a custom. It can generate customary International Law but only when provision considered is fundamentally non creating character such as could be regarded as the basis of general rule of law.
2] INTERNATIONAL TREATIES AND CONVENTIONS :
Article 38(1) a Mentions treaties and conventions as sources of international law. The term ‘convention’ implies any treaty, convention, protocol or agreement. Treaties mentioned in this definition are categorized into two types which are ;
- law making treaties : These are the treaties having more number of parties creating universal norms, for example Vienna Convention on law of trees 1969.
- treaty contracts : This treaty is between two States or more, concerning affair between them exclusively.
PACTA SUNT SERVANDA [The binding force of treaties] This phrase means states are bound to fulfill in good faith, obligations derived by the treaties.
In S.S Wimbledon case 1923 it was held that a treaty is superior to custom however, there is an apparent conflict between the two.
3]GENERAL PRINCIPLES OF LAW RECOGNISED BY THE CIVILIZED NATIONS :
Article 38(1) c of the statute of International Court of Justice States this as one of the sources of international law. This source act as a safeguarding net where no other sources of international law is available. The rationale behind inclusion of this particular principle as source is, it is fairly presumed to be reasonable and is acceptable by other civilized legal systems. Pacta sunt servanda Is one such example. There are many principles like :
- RES JUDICATA – If any matter is judicially decided, it is deemed as final decision and there is absolute bar on same claim.
- EQUITY – Equity is highly used principle used for deciding any dispute and is one of the most recognised principle by the civilizations.
- ESTOPPEL- Any state party to International obligations of its previous acts when they are in contradiction with law.
4] JUDICIAL DECISIONS AND JURISTIC WORK :
Article 38(1) Refers to judicial decision as a subsidiary means for determining the rules of law. The decisions of International Court of Justice are not binding accept the parties, But these decisions can be referred for deciding any case.
Writings:
The writings of juristic scholars, lawyers may also be persuasive guide to the context of international law. Calvo clause and Drago doctrine are instances of such rules in international law.
MODERN SOURCES OF INTERNATIONAL LAW :
RESOLUTION OF GENERAL ASSEMBLY :
After establishment of the United Nations Most of the development of international law has taken place. The United Nation general assembly is one of the principal organ of United Nations and its decision are now recognised as an important source of international law. These resolutions of United Nations General Assembly do not have any legal obligation but has moral obligation.
MEMORANDUM OF UNDERSTANDING:
Memorandum of understanding between two states are the agreement of mutual understanding between two Nation States concerning their interaction with each other .These Memorandum of understanding can also be considered as a modern source of international law.
CONCLUSION :
There is no field in the international world which is not governed by international law. These wide sources of international law gives it greater scope and a more inclusive approach.
REFERRENCES
- Singh, N. (1973) India and international law. New Delhi: S. Chand.
- https://www.academia.edu/27871613/PUBLIC_INTERNATIONAL_LAW_LECTURE_NOTES
- Peter Malanczuk & Akehurst’s Modern Introduction to International Law, (London: George Allen & Unwin, 1997); 49.
