International Law

Background of International Law:

In any given society where people live together, conflicts of interests are bound to arise and there is
always the need to do justice. Rules for the regulations of human conduct are, therefore, present in all
societies. They are necessary for the stability and peace because man would not know how he should
behave. As the relations of the individuals in a society are governed by municipal law, the relations of
the states are governed by international law. Like municipal law, international law also maintains
international order and stability in the society of nations. It is in the interest of states themselves to
agree and to regulate their relations with one another.

Definitions of International Law:

International law means the law among nations. It is a law which governs the conduct of states'
interests. International law is the body of rules which defines and regulates the relations of states in the
international society. It creates rights and obligations on the states.

According to Lawrence, “International law is the body of rules of civilised states in their dealings”.

According to Hall, “International law consists in certain rules which modern states regard in this
relations with one another”.

International law is the body of rules which regulates the relations of states, and is also known as
'Public International Law'.

International law is divided into two laws:

(1) The law of war, and

(2) The law of peace.

Relationship between International Law and Municipal Law:

International law has already been defined above and as generally called 'Public International Law'. A
distinction between public international law and private international law.

Public international law regulates the conduct of states with one another; whereas the private
international law regulates the relations of the citizens of different states.

Public international law is the same for all the states while private international law varies from state to
state. Every state has its own rules of private international law and they are laid down by the courts.

Public international law is concerned with the conduct of states, while private international law deals
with the acts of individuals.
Public international law is a weak law, whereas private international law is more effective.

Private international law is applied to those cases where some conflict is found between the municipal
laws. Such conflict of law may arise in cases of citizenship, marriage, divorce and so on. The need of
arises when a municipal count has to apply foreign law which the municipal courts follow when a
dispute arises between foreign element and private persons.

Development of International Law:

In any given society where people live together, conflicts of interests are bound to arise and there is
always need to do justice. Rules, therefore, present in all societies. They are necessary for order
stability and peace because without them man would not know how he should behave. Such behaviour
are called 'laws'. As the relations of the individuals in a society are governed by municipal laws, the
relations of sovereign states are governed by international laws. International law maintains stability
among the nations. It is in the interest of states themselves to agree a set of principles of rules of their
relations with one another.

Evolution of International Law:

The evolution or history and development of international law is divided into the following stages:

(1) The primitive and ancient period,

(2) The middle age,
(3) The 15th and 16th centuries,
(4) The 19th century, and
(5) The 20th century and later.

(1) Primitive and Ancient Period: The early history of human civilisation, there are some traces
of international law especially in ancient Greece, ancient Egypt, ancient Jews and ancient
Rome. They entered into different treaties with other nations.
(a) Ancient Greece: Amongst the Greeks we find that states relations were regulated by
international law which was based on a religious morality but these rules of international law
were applied only on the people of the same race. The non-Greeks were treated as 'barbarians'.
(b) Ancient Rome: As in the Greece, in Rome also the rules of international law were on religious
morality.

(2) Middle Age: During the middle age there was no favourable climate for the development of
international law. Following international laws were enacted mostly in the European countries:
(a) The supremacy of church and its law throughout the European countries. Pope made the
international law.
(b) Beside the Pope, the Emperor represented the supreme authority in the western world.

(3) 15th and 16th Centuries: The 15th and the 16th centuries are considered as the centuries of the
rise of international law throughout the Europe. The process of development was spread over
from the middle of the 6th century to the end of the 15th century. At that time Europe was in fact
divided into a great number of independent states and the necessity for international law to
 regulate the relations of the states arose.

It was during this time that a number of thinkers and writers began to work out several schemes.
Thus at the end of the period, two factors become very apparent, i.e. fall of the church and
secularisation of the political force, and the fall of Roman empire and the rise of sovereign
states. Another important feature of the two centuries was the rise of a number of text books
writers who not only gave a systematic treatment of the subject but also suggested new rules.

(4) 19th Century: The 19th century was the period during which treaties and international
conferences began to play a very vital role in the development of international law. The
Convention of Paris of 1856 contained rules for the guidance of states on warfare at sea.

The third convention of importance was the Geneva Convention of 1864, which provided rules
for the betterment of the condition of the sick and wounded in warfare. Besides these
conventions which provided rules for regulation of warfare during this century, there were
numerous conferences for the regulation of economic and social interest.

Various international unions were formed for the promotion of the above interests. For
example, public health, public morals, public safety, etc. The Hague Conference of 1899 called
at the instance of the Czar of Russia, its objects was the limitation of armaments.

(5) 20th Century: International law in the classical period (i.e. 15th to 19th century) developed to
cover such things as freedom of seas, foreign courts, etc. The First World War brought the
classical period of international law to an end. After WWI, states agreed in the League of
Nations through collective security system. The same tendency of the 19th century can be seen
till the First World War. There were many more international conferences. The most important
of them was the Hague Conference of 1907.

Europe realised the importance of international organisation for the purpose of maintaining
international peace and security and the promotion of international co-operation. After the
World War I, the Treaty of Versailles laid the foundation of the League of Nations. The next
important treaty of the 20th century was the Treaty of Lacarno in 1925.

After the World War II, the United Nations was established and its organ the International Court
of Justice (ICJ) became a permanent international court of justice.

Nature and Functions of International Laws:

International law means the law among the nations of the world. It is a law which governs the conduct
of the state interest. International law is the body of rules which defines and regulates the relations of
states in the international society.

International laws are frequent especially during the war periods. One of the biggest limitations of the
international law is its enforcement. International Court of Justice has no power to enforce its
judgements on the states. The states are free to obey or disobey the decisions given by the ICJ.
Violations of international law are certainly frequent, especially, during the war periods. The states in
breaking international law never deny its existence but interpret it in a way as to justify their actions.
According to Austin, every law must be backed by the authority of the state and if that element is
lacking, it cannot be called law. If this definition is applied to international law, it cannot be called law
in the true sense. There is no political authority over and above the states to enforce the rules of
international law.

Modern writers regard international law as true law. In spite of a number of weaknesses in
international law, modern jurists do not deny its legal character and consider it as something binding.

Public international law is commonly divided into the 'Law of War' and 'Law of Peace':

Law of Peace:
Law of peace consists of the following:

(i) Subjects of international law

(ii) Sources of international law
(iii) Rights and duties of states
(iv) Recognition of states and governments
(v) State succession
(vi) State territory
(vii) Nationality
(viii) Treaties and agreements
(ix) Diplomatic immunities
(x) Settlement of disputes

Law of War:
War in some cases may be lawful. The purpose of laws of war is to eliminate violence.

Public International Law and Private International Law:

(a) Public international law regulates the conduct of states, whereas the private international law
regulates the relations of the citizens of different states belonging to different political systems
from state to state.
(b) Public international law is same for all the states, whereas the private international law varies
from state to state. Every state has its own rules of private international law.
(c) Public international law is concerned with the conduct of states, while private international law
deals with the acts of individuals and not of states.
(d) Public international law is a weak law, whereas private international law is more effective in its
enforcement.

Basis of International Law:

International law is very weak in its enforcement. Most nations obey international law because they
consider in the general interest of international community to fulfil their obligations under international
laws. Man possessed some fundamental rights as independence, equality, etc. Similarly state also
possesses these fundamental rights. In the modern period, the means of transport and communication
and other scientific inventions have brought the states of world closer to each other. States obey
international law because it is in their interest to do so.

It is true that international law is frequently violated but it does not mean that international law is not a
law as even state and municipal laws are violated. As compared to municipal / state law, its
enforcement is definitely weak.

Despite the several weaknesses international law is constantly developing and its scope is expressing.
The scope of international law has widened. It covers not only the various economic and social
interests of states, but also the fundamental rights and freedom of individual human beings.

International Law and National Law:

International law is different from national law in the following aspects:

(a) International law applies to relations between states, and individuals and groups cannot bring
cases before international bodies, such as ICJ.
(b) Unlike national law, international law is not produced by legislative body. (e.g. British
Parliament, Indian Parliament, etc.).
(c) International courts do not have automatic jurisdiction over disputes.

Sources of International Law:

There are several sources of international law, most of them are derived from different treaties. The
five main sources of international law are as follows:

● United Nations Charter

● Geneva Convention
● Legal principles
● Prior judicial decisions, and
● Writings of legal scholars.

Role of United Nations in the Promotion and Institutionalisation of Human

Rights:
There are certain rights of the individual which are inherent in his personality. Human rights are
universally accepted. There are few states where the human rights are actually assured, including USA,
UK, France, Japan, Canada, Australia and New Zealand. Before the end of the second world war,
efforts were made for the protection of human rights. The representatives gathered at the San Francisco
Conference, to affirm human rights.

Under Article 1, the United Nations is to achieve in promoting and encouraging human rights and
fundamental freedom without distinction as to race, sex, language or religion.

Under Article 13, it is the duty of the General Assembly to assist human rights and fundamental
freedom for all.