Nature, Origin, and Bases of International Law PDF

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International LawMuhammad Minhaj MahdiDefinition of International Law Oppenheim: International Law is a body of customary [norms] and treaty [ies] which are considered legally binding by civilized States in their intercourse with each other. J. L. Brierly: international law may be defined as body of...

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International Law

Definition of International Law -

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Oppenheim: International Law is a body of customary [norms] and treaty [ies] which are considered legally binding by civilized States in their intercourse with each other. J. L. Brierly: international law may be defined as body of rules and principles of action which are binding upon civilized states in their relations with one another These definitions are true but incomplete Modern day definition would include states as fundamental subjects and all other international participants (IGOs, NGOs, MNCs, and individuals) that interact which each other in international arena in trade, commerce and politics, establishing cross-border relations and bound together by treaties, customs and generally accepted principles in ever changing scenarios. Today, International Law is a dynamic phenomenon rather than its traditional view as a static set of principles. International Law may be weak, but is still law

Bases of International Law -

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Theory of Natural Law: also known as theory of fundamental rights, states that basis of all laws is natural law. Main proponent of this theory was Grotius. Because the natural law is universal and humans live their lives through intercourse with each other, a universal law is derived by the international community that forms the basis for the international law Theory of Consent: international law consists of rules consented by States to be observed. Proponents of this theory argue that the provisions of the treaties become binding on the parties and so it becomes a law. Opponents of the theory argue that treaties are of limited use and the theory fails to explain what exactly makes the States comply with the treaty and hence regard it as an imposing law Theory of Legal Positivism: in any legal system, whether a norm is legally valid and whether it forms a part of that legal system depends upon its sources and not its merits. Hence, it is not the merit of International Law but the sources that allow it to be binding on States all over the world and form a strong basis.

Early Authors of International Law -

Hugo Grotius (1583-1645); ‘Father of International Law’ rose to fame through his first work “De Jure Belli ac Pacis” (1625) Zouch (1590-1660); follower of Grotius in method Bynkershoek (1673-1743) Wolfe (1679-1754) Vattel (714-1767) Moser (1701-1786) G. F. de Martens (1756-1801) Wheaton (1785-1848) L. F. L. Oppenheim (1858-1919)

Muhammad Minhaj Mahdi

International Law

Scope of International Law -

While International law may seem to apply only on States, in today’s dynamic world it applies beyond States too Inter-Governmental Organizations (IGO) are under international law’s jurisdiction Non-Governmental Organizations (NGO) play a huge part in today’s world. They are also subject to International Law Multinational Corporations span beyond borders of States and even continents. They also fall under the jurisdiction of International Law Finally, Individuals are also a subject to International Law. With emergence of Human Rights, Dual Nationality and Declarations against Discrimination, for examples, individuals have become an important subject to the International law in cases of universal cases

Weakness of International Law -

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Some view it as a mere positive morality; John Austin o Lacks a sovereign o Lacks an enforcer o Lacks a proper system of judiciary that could interpret the laws o The jurisdiction of this law also unclear o Works on the basis of consent, and without consent it is of very limited use Some view it as law; Oppenheim, Hall and Lawrence o A law of coordination, not of subordination o States consent to treaties in order to perform in international community with peace o This consent turns the norm into a legally imposing law o The law making treaties act as a legislature for international law o The United Nations Security Council may be viewed as an enforcer of law o Even State laws not based on a sovereign, but on complex structures (like US doctrine of separation of powers) International Law is law, but a weak one Lacks effective machinery ICJ lacks compulsory jurisdiction (decisions bind parties only) and its decisions do not form precedent Rules of international suffer from great uncertainty Breaches of international law are widely publicized and hence the law is more severely criticized than any municipal law would be

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