This article is written by Hari Anand Singh Soni of Iswar saran Degree College, University of Allahabad Prayagraj
Abstract
Every society which is made from initial need some rules to govern them and promote peace and tranquility among the members, these rules are made and amended considering the present and future course of event and when laws are made to synchronies the global working then it is referred as international law. International law (also called as law of nations and Public International law) is a framework of rules and regulations which are generally highlighted as binding upon the states. International law provides guidelines and concept-based framework to state over a wide bag of domains such War, trade, navigation, diplomacy. These laws are different from the state based domestic or national law and are state exclusive and citizen inclusive. Its state discretion to abide by any international law, even breach of any law pertaining to international spectrum can be met by the process of disapproval by other nation, in some cases a state can pressurized the law violating state through diplomatic actions to economic sanctions and finally to war.
Keywords: International law and its development, a polychromatic approach of international law, world diplomacy, fundamental scenario of international law before 19th century, blend of ‘interest and international law’ after 19th century .
Introduction
The terms international law was germinated by great jurist Jeremy Bentham1 in 1789 in his book Introduction to the Principles of Morals and Legislations replaced the old law of nations. The definition of international law has been under controversy, Bentham emphasized that relation between the states is what international law which is mostly criticized because of its narrow approach to such a colossal subject. The most accepted definition by the scholars was given by Lassa Oppenheim his definition reads ‘a law between sovereign and equal states based on common consent of state’, in his version of definition he laid stress upon the common interest of the states that is why his definition is widely accepted since a state at past, in present and in future will undergo any treaty on the premise of its interest.
Earlier in ancient times only the state was taken into consideration under the purview of international law but with the passing of time and economy becoming more globalized and dependent this concept underwent some changes taking into account entities and humans as well, this gives birth to broadly three theories2 of international law
- Realist theory3 – Realist theory highlights that state/nation are the agent and subject to international law. It relies on the theory that it is state for which international law came into existence. The state is distinct entity and is capable of having their own rights and possesses capability to maintain their rights under international law.
In a nut shell this concept does not hold accountable anyone except state
Prof. L. Oppenheim who gave the broad definition of international law is the firm supporter of this theory and believes that law of nation is primarily between the states and shall only be nation centric.
Although this theory only concern nation but this theory does not have any leave any message for slaves and pirates as under international law.
- Fictional theory4– This theory is of the objective that people in common are the pawn of the international law and such legal framework is for the welfare of the individual. Nation/ state are made of people and it is people who are the spectrum of consideration not the nation.
Prof. Kelsen, who being the supporter of fictional theory opines that duties of the state are wholly the duty of citizen of the state, Kelsen also says that there is no friction between international law and municipal law (domestic law) and have been made binding upon citizens only.
- Functional theory5 – Both realistic and fictional theory rests on an extreme side of opinion, since realistic navigates around stare and fictional theory navigates around individual but according to functional theory neither individual nor the state are the subjects of international law. As they both have highlighted rights and duties so they both can be comprehended to be the subject of modern international law.
In the present scenario, individuals have been conferred with certain rights and duties and moreover it is accepted that multination organization will also come under the purview of international law.
Branches of International law
There are mainly two branches of international law
1. Jus Gentium6
- Jus Inter Gentes7
Jus gentium is called as ‘Law of Nations’, these are pertaining to those set of laws which are inclusively governing relationship between two nations and these do not form a part of a legal conduct or statute. In a nutshell these aren’t binding so no legal action can be enforced
Jus Inter Gentes is also called ‘Law between the People’; these are those treaties and agreements which are mutually accepted by the two nations. Since these are mutually accepted so these are binding and since these are binding so violation of these treaties shall enforce legal action.
Types of International Law
International law can be broadly divided into 3 categories
1. Public International Law8
2. Private International Law9
3. Supranational Law10
Public International Law is quite a versatile law these are pertaining to rule and regulations between all the nations and international institution. It takes into consideration the rules for entire mankind, ocean navigation, trade, and environment.
Prominent international organizations where public international law applies are.
- United Nations
- European Union
- International Organization for Migration
- World Trade Organization
- UNESCO
Driving force for Public International Law is
Custom- consistently state carrying on any duty with a perspective that they have legal obligation to do so.
Since globally a duty is carried on so a domino effect to carry forward.
For example – The Paris Climate Agreement which is almost ratified by almost all the nations is an agreement which envelop climate change mitigation, adaptation, and finance.
The non- proliferation treaty, united nation convention on law of sea etc. are the example of public international law.
One thing which needs to be understood here is, the concept of sovereignty is more superior to the public international law, a state is free and no state can be forced to sign any treaty.
Private International law
Private International laws are also called ‘Conflict of laws’ and this phrase was first time used in 1689 by Ulrich Huber in his book ‘De Conflictu Legum Diversarum in Diversis Imperiis’.
The phrase ‘conflict of law’ is mostly used in US, UK and Canada. Private international law mostly derives their genesis from national law. Each nation has its own domestic law and the applicability of Private international law differs from nation to nation
Since there is usage of word private, so this law is pertaining to private entities and individuals of divergent nations and the relationship between them. People on a constant term interact from each other and make legal relationship.
The process of Globalization has led to prove private international law its prominence in this present world scenario. For example if there is a fraud with a
person in foreign nation/ entity then the rule of private international law will apply if that person wants to sue.
Supranational Law
Supranational law is a branch of an international law wherein the rights of sovereign nations between one another are compromised for the formation of a treaty through judicial mechanism to set a common tribunal
The United Nation Security Council and its subordinate organization such World Trade Organization, World Health Organization, International Civil Aviation Organization are the globally accepted Supranational Organization.
Versions of Supranational law
- American supranational law – The first supranational agreement of the USA was the ‘Articles of Confederation and Perpetual Union’ through which 13states of USA were unified and formed a common government which subsequently gave birth to present day United States of America. The common government which was formed through unification proved too weak to manage the rising economy as the sovereign state incurred national debts and without central coordination started managing their currencies. As a result the supranational government was disintegrated and all the states were conflated into a unified sovereign nation state in 1785 by the constitution of United State.
- European supranational law– All the nations of European nation have transferred their authority through the system of courts and political institution and the interesting part about this system is that unlike the public international law they have ability to enforce legal norms against and for the member state and its citizens.
Development of International Law
The development of International Law was the not the treaties made in 19th and 20th century rather it was developed much centuries before. Its practice started in ancient time and the first instance which witnessed the development of international law was the peace treaties between the Mesopotamian city of Lagash and Umma11 the treaty was inscribed on a block of stone and the subject matter of treaty was the defined boundary which was enforced to be respected from both the sides.
The treaty of Lagash and Umma is considered as the oldest and the first water boundary treaty in the world, these were the two Sumerian city of the Mesopotamia, and both cities consisted of some fertile land which was irrigated by Tigris water canal also called as Lum water canal, the canal was divided so that both the regions can be benefitted.
The next major instance which witnessed the characteristics of an international treaty was concluded after 1000years, this was between Rameses II of Egypt and the king of Hittites for the maintenance of eternal peace and brotherhood.
Peace Treaty of Westphalia, 164812
There was a war continued for 30 years between Catholic league and the Protestant union. The catholic league was lead by Habsburg France Spain and the protestant league was lead by Norway, Denmark. The war started with a single conflict between Bohemia and Holy Empire. Different groups started to join the war and within a span of time the war circumnavigated to whole Europe. The war proved to be one of the bloodiest wars in Europe.
The negotiations were complex and talks were conducted in two different locations since each side desired to conduct negotiations under its own controlled territory. A total of 109 delegations arrived to highlight the disputed states but
unfortunately all delegations were not present at the same time. To resolve the dispute and stop the further bloodsheds a total three treaties were signed the Peace of Münster, the Münster Treaty, and the Osnabrück Treaty. These treaties led to the conclusion of 30 years’ war (1618-1648) in the Holy Roman Empire moreover the treaty also led to the conclusion of war between Spain and the Dutch Republic (1568–1648), with Spain officially accepting Dutch independence.
The outcome of the treaty were several
- Austria’s Swiss got independence and Spain got independence from Netherland
- Secured sovereignty for German principalities
- In central Europe a new form of political order emerged which focused on peaceful co-existence between sovereign state
- Religious freedom- there was the realization of fact that lack of religious freedom was a primary reason of war so the Treaty of Augsburg was again taken into consideration and the greater freedom of religion was granted.
Effect of World war13
Colonial expansion of the European (especially Britain) powers reached its climax in the 19th century and their influence began to denigrate due to the bloodbath which they organized during the World War I which made it the need of an hour to build such an international organization which stops the further wars in the globe, this gave rise to the establishment of League of Nations which was made on the premise of promoting world peace and security, after 1900 we witness that for the 1st time human rights and self-determination were given due recognition. But after sometimes we found that
The League of Nations which was formed to avert the wars failed to avert the Second World War.
The United Nations14 which was established in 1945 after the second world on the same premise on which The League of Nations was formed, the UN proved to be more robust and legal organization with its subsidiary institution such as Internal Court of Justice (ICJ) and the United Nation Security Council (UNSC).
The establishment of International Law Commission in 1947 proved to be a game changer in the establishment of international law of the modern world.
With the recent development we witness the advent of nuclear and space penumbra into the umbrella of international law. Under the guidance of United Nations the establishment of space law foundation in 1960. Treaties which allowed the internationalization of outer space (1967) and other celestial bodies (1979) were signed. The Nuclear Non-Proliferation Treaty of 1968, making global laws on these sectors has made the international law of paramount importance.
International law in the present spectrum of globalized world are of great significance and time to time addition of rules are necessary to make it more
vibrant and since these laws are nation connecting so a sort of balance needs to established.
References
- https://en.wikipedia.org/wiki/International_law#Sources_of_international_law
- https://blog.ipleaders.in/international-law/
- https://blog.ipleaders.in/international-law/
- https://blog.ipleaders.in/international-law/
- https://blog.ipleaders.in/international-law/
- https://thebusinessprofessor.com/global-international-law-relations/what-is-public-and-private-international-
- https://www.tutorialspoint.com/international-law-meaning-types-and-sources
- https://www.legalserviceindia.com/legal/article-10255-development-of-international-law-an-overview.html
- https://en.wikipedia.org/wiki/International_law#Sources_of_international_law
- https://kinnu.xyz/kinnuverse/history/cold-war/consequences-and-
- https://www.studyiq.com/articles/international-organisations-united-nations-upsc-series-lecture-1-free-pdf/
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