Definitions and nature of international law

Definition and nature of international law
‘International law is the law regulating relations between states.
The term international law was first used by the English jurist Jermy Bentham in his book ‘Principles of Morals and Legislation’, first published in 1789.
Most traditional jurists have considered international law as the law that regulates the mutual relations of states and have also defined it in this sense.

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Definitions of International Law

According to Hall,

” International Law consists in certain rules of conduct which the modern civilized states regard as being binding on them in their relation with one another.”

According to J.L. Brierly,

“The law of Nations or International Law, may be defined as the body of rules and principles of action which are binding upon civilized states in their relations with one another.”

According to Philip C Jessup,

“International law or the law of nations is the law that applies to the relations between states and to the relations of individuals with states.”

According to Fenwick,

“International law may be defined in broad terms as the body of general principles and specific rules which are binding upon the members of the international community in their mutual relations.”

According to Hackworth,

“International law consists of a body of rules governing the relations between the states. It is a system of jurisprudence which, for the most part, has evolved out of the experiences and the necessities of situations that have arisen from time to time.”

According to Whiteman,

“International law is the standard of conduct, at a given time, for States and other entities subject thereto.”

In the S. S. Lotus case,

“The International Court of Justice said that by international law we mean those principles which are applicable between independent nations.”

As defined in West Rand Central Gold Mining Co., Ltd. v. King,

“International law refers to the rules accepted by civilized nations that determine the mutual conduct of their citizens.”

According to Oppenheim,

“Law of Nations or international law is the name for the body of customary and conventional rules which are considered legally binding by civilized States in their intercourse with each other” These rules are primarily the rules that govern the relationship of states. But states are not the only subjects of international law; international organizations and, to some extent, individuals can also be subjects of the rights and duties conferred by international law.

According to Starke,

“International law is that body of law, the majority of which consists of those principles and rules of conduct that states bind themselves to follow. Therefore, they generally follow it in their mutual relations and it also includes.-
The functioning of international institutions and organizations and their mutual relations and legal rules of relations between states and individuals and
Certain legal rules that relate to the international community regarding the rights and duties of individuals and non-state entities.”

According to the Swargen- berger,

“International law is the set of legal rules that apply to sovereign states and other entities that have international personality.

Nature of International Law

Different jurists have different -2 views regarding nature of International Law-

International Law is not a law, Supporters of this view are – Austin, Pufendorf, Hobbs, Holland, Jethobrown

Whether international law is law in the true sense or not depends on different definitions of the word law.

‘Law is an order of a sovereign ruler and is carried out by a higher political authority – Austin.

It all depends on how we define law, -Lawrence

The difference of opinion whether international law is law or not is a quarrel of words – Professor Williams

Law is an order of a sovereign ruler which is enforced by a superior political authority – Austin and Pufendorf.

According to Austin, people follow the law – because of fear.

According to Austin, the Positive Law has three characteristics –

This is a type of order
It is given by a political sovereign ruler
It is implemented by a disciplined

International law cannot be categorized as positive law because it is not made by the sovereign and does not have sanction – positivism.

“Man by his nature is mischievous and violent and to maintain order in society, the fear inherent in law is necessary” – Hobbes

Arguments in favor – international law is not a law

In national law, there is a political authority that forces citizens to follow the law, but international law lacks this type of political authority.
The legislative institution is also absent in international law.
There is also a lack of sanction in international law.
In international law, there is no executive power that can make the state implement the decisions given by the International Court and the provisions of treaties.
International law lacks a competent court.

Because international law lacks important elements of the legal system, some jurists consider it quasi law.

The above view that international law is not law is beyond the truth.
“This definition is not appropriate. It does not include that part of state law which is called written and customary law. In fact there is no community, no state which can even be based on written law.”- Oppenheim

Criticizing Austin’s definition,

Professor Hart writes that this definition is suitable only for the criminal act.
“Law is that set of rules for the conduct of human beings within the community which will be enforced by external power through the general consent of the community.” Professor Oppenheim
According to Oppenheim, the main elements of the definition of law are-
The set of rules, the community and the general consent of the community, that this law has to be followed by external power.

Another major critic of Austin’s definition – Pr. Brierley
Unless we distort the facts so that it falls within the definition, this definition does not include the English common law – Pr. Brierley

International law is actually law

Starke’s arguments in support of international law being the real law

and has presented the following argument in favor of international law actually being law –

Modern historical jurisprudence has proved that in many legal communities there exists a system of law without any formal legislative power and that such law is no different from that created by the true legislative power of the State.
International legislative also now exists to some extent as a result of law-making treaties. Therefore, Austin’s ideas, even if they were mentioned above in his time, are no longer appropriate.
The institutions which are responsible for maintaining international relations also do not consider international law merely as a code of ethics.
The United Nations is based on legality as a true form of international law.

Oppenheim’s arguments in support of international law being the real law-

International law is law because it is consistently recognized as law in practice. States also believe that not only morally but also legally the state is bound to obey international law.
Whenever states violate international law, they never deny its existence but interpret it in such a way that they can justify their conduct.
Denying the true nature of international law is not only inconvenient in practice but also contrary to good legal principles. – Pr. Brierley

The legal arguments that consider international law as law in the true sense can be briefly presented as follows –

The word ‘law’ cannot be limited to the rules of conduct made by the sovereign authority. Law existed even at a time when the sovereign authority did not exist.
At present, most of the international law is being created through international law making treaties.
When any international question arises, instead of moral arguments, states base their arguments on the precedents of treaties and the opinions of jurisprudence.
In international disputes, states do not deny the existence of international law, rather they explain it in this way that their conduct may prove appropriate.
The concept of sleeve law is not appropriate because it does not include the rules related to civil law. Therefore, if the concept of sleeve law is accepted then the Common Law of England will also not be able to come under the category of law.
Some states like America and England consider international laws as a part of their law.
- Justice Gray also supported this opinion in the Pocket Havana case.
- According to Justice Gray, international law is a part of our law and should be determined and governed by the courts of justice having appropriate jurisdiction whenever a question arises for decision based on it.
- International law has also been considered as law in the true sense of the word in the case West Rand Central Gold Mining Company Limited v. Rex.
- Even in Di Lola’s case, international law has been considered as law in the real sense.
International law has also been considered as real law in international conventions and international conferences.
The United Nations is based on international law being law in the true sense of the word.
As far as sanction in law is concerned, there is no complete absence of it in international law.
It is true that international law is often violated. But violation does not mean that international law is not law. Violation of state law also takes place. Violation of law only shows that the law is violated as the enforcement agency is weak.

Despite the above arguments, it has to be acknowledged that international law is not equivalent to state law.
State law and international law are based on two different systems, hence even their comparison is meaningless.
International law is, in fact, law, and it is as strong and effective as it can be in an international decentralized system.

Is international law just pure morality?

Although the ethical perspective influences the development of international law, states are not bound to follow the rules of ethics, whereas the rules of international law are binding. Therefore, in conclusion it can be said that international law is real law, not morality.

Although, According to Holland international law is almost the vanishing point of jurisprudence.
The rules of international law are followed out of courtesy and cannot be classified as law.
Holland does not consider international law as law because it lacks sanction.
Austin is also Supporters of the above opinion of Holland.
Also according Dias “Fear and self-interest are the main reasons why states follow international law.”
The case – Nuclear testing case (1973) in which the decision of the International Court of Justice has not been accepted.

But Each state member has expressed its determination to abide by the decision of the International Court – under Article 94.
States are bound – Security Council decisions
Power to enforce sanctions has been given – in Chapter 7
A major limitation on international law – Article 2(7) of the Charter
Exception to Article 2(7) – When the Security Council is taking proceedings under Chapter 7.
The Members of the United Nations have pledged not to use force against each other, subject to Article 2(4).
The Charter allows the use of force in self-defense under Article 51.

References – Book

Dr. S.K. Kapoor, Human Rights & International Law, Central Law Agency.

International Law