What is International Law?

Introduction

‘International Law,’ or as is formerly known as ‘law of nations,’ (known as “jus gentian” in Roman law) refers to a set of norms that guide the relations amongst states. The term was proposed by Jeremy Bentham in his book ‘Principles of Morals and Legislation.’ in the year 1789. Although the term has not only gained significance, also having emerged as a renowned discipline, the term ‘law of nations’ is preserved in German, called “volkerrecht.“

In the present day, International Law encompasses in its ambit plethora of laws and conventions for the development of the world as a community, such as international humanitarian law, law of war, international criminal law, refugee law, space law, amongst others.

Classification

International Law can be broadly categorized into two parts:

1. Public International Law: This branch of international law defines the relationship of the sovereign states on the global standing inter se, with other states and other international personalities. It is the same for all the states and the main reason for its obedience is the deterrence or international sanction.

• Private International Law: Unlike its counterpart, private international law is not governed by international treaties and conventions, but the bilateral treaties that two states enter into. These treaties are framed by the state legislatures, which is why usually the courts are predetermined herein, unlike in the public international law where no court is predetermined. This differs from state to state.

Sources

The sources of international law are not only responsible for understanding its origin and working, but also the application of it in international jurisprudence. In the international courts, the following sources are treated as authorities:

1. Treaties and conventions: The main source of international law are the signed treaties and conventions that the state is a signatory party to. This binds the state with the obligations reinforced by the treaty. The state cannot work in digression from these rules, once it has acceded to them.
   Vienna Convention on the Law of Treaties defines a “treaty” as “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.”
2. International Customs: These are the practices of law that have gained sanctity in the international arena due to their consistent following (consistency), uniform and global obedience in the same form in its letter and spirit (generality), and for a long period of following (duration). These then attain the status of ‘jus cogens,’ meaning thereby, ‘natural law’ or ‘positive law.’ In the case of Colombia v. Peru, (commonly referred to as the ‘Asylum case‘) it was held that customs, rightfully, constitute a source of international law.
3. General principles of law: These are the commonly established principles of international law, which are called ‘jus cogens.’ The states don’t have an option to invalidate their existence. Their following is mandatory for all nations, as these have been placed at the highest pedestal of the international jurisprudence.
4. Judicial decisions of the international courts: In the international jurisprudence the judicial precedents don’t have binding value. Merely having persuasive value, the judicial precedents help the courts clear its understanding of the legal issue involved at hand, otherwise the court decides the facts of law independently in every case, detached from its earlier stance.
5. Opinions and writings of the reputed jurists: When all the above-mentioned sources fail to clear the mist of gray area in the international jurisprudence, finally the writing of renowned jurists are referred to, to understand the intricacies of the matter and to clarify the judicial stance. Although this remains a little arbitrary, as the term “reputed jurists” is nowhere defined and there is no certain criteria present for the same.

Views contending its municipality

Different scholars agree on different views regarding the binding power of international law. This gives rise to three schools of law:

1. International law is true law: Propounded and propagated mainly by John Austin, this school derives its motivation from the latin maxim “ubi societas, ibi jus” (literally meaning, “where there is society, there is justice”). This school fools that international law is just as powerful as municipal law as it is followed by the states, and therefore, cannot be ignored. The school contends that states follow it due to respect, and deterrence.
2. International law is weak law: This school cites the realistic events when the rules of international law were flouted by the nations at their own prerogative for their benefit, such as when the United States of America attacked and invaded Iraq and Grenada. Not only did it do so according to its whims and fancies, but there was no action taken against it for such gross violation of the international law. These scholars, therefore, contend, that international law is weaker than municipal law and has no international binding force. They say that states follow it merely at their discretion and it can be flouted without any backlash.
3. International law is a vanishing point of jurisprudence: Led by Holland, this school gains its source of growth from both the previous schools equivalently, being a semblance of both of them. It says that neither international law is purely a field of jurisprudence as the first school thinks, nor it is totally devoid of it as conceded by the second school. But it follows a mediated path, where both the things might although appear to be one and the same thing, but they go hand in hand, albeit maintaining their distinct individualities. Therefore, this school propagates that it can be regarded as law merely by courtesy, since its emanation is not channeled from a specific legal source.

Origin

The term was coined by the English philosopher Jeremy Bentham (1748–1832).

Conclusion

International law is rapidly growing in today’s world, and its importance is unflinchingly increasing. It has been defined by different scholars in different ways.

• Brierly defines international law as “the body of rules and principles of action which are binding upon civilized states in their relations with each other.”
• Hall says international law is ‘certain rules of conduct which modern civilized states regard as being binding on them in their relations with each other.’
• Oppenheim defines it as a “boy of customary and treaty runs which are considered legally binding by states in their intercourse with each other.”

It is everywhere- from diplomacy to war, from maritime and admiralty to space and outer space. It is molding into something new with every passing day. Therefore, it would be interesting to see how the field flourishes further.