Its Origin- The term international law was first coined by Jeremy Bantham in 1780. It is synonymous with the law of nations.
Larance- The rules which determine the conduct of the general body of civilized States in their mutual dealings.
Larance did not consider the individual role in international law he consider only the mutual dealing rules of civilized states.
Oppenhelim- 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.
Criticism-
A- Omission of International organization- it is generally recognized that not only states but international organizations, have rights and duties under international law, even though they may not have all rights and duties which state have.
B- Civilized State- there are state which has not been considered as a civilized state but they are the part of international law for example China.
C- Omission of General rule of law- it is generally considered that international law not only consist the customary and conventional rules but also the general principle of law. A/c to Art 38 of the international court of justice- General Principles of Law recognized by civilized states as the third source of international law.
D- Static definition- international law is the body of rule now stands changed as static and inadequate, like all other law international law is a living law and dynamic in nature.
Though Oppenheim, lather change his definition of international law and included –
International law is the body of rules which are legally binding on states in their intercourse which each other. These rules are primarily those which govern the relation of states, but sates are not only subjects of international law. International organization and to some extent, also individuals may be subjects of rights conferred and duties imposed by international law.
J.L Briely- 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 on another.
Torsten Gihl- the term international law means the body of rules of law which apply within the international community or society of states.
Kelson- body of rules which regulate the conduct of the states in their intercourse with another.
Soviet definition and approach to international law
The norms regulating relations between the states in the process of their struggle and co-operation, expressing the will of the rulings class.
Criticism- the soviet approach more towards the international personality than the states.
Chinese Definitions and approach to international law.
International law like all other branches of law, is created in determinate stage of mankind social development.
In china international law regarded as a legal instrument in the service of foreign policy.
This approach also criticize because they also not regarded international organization and individuals as subjects like the soviet. But china now has taken completely U turn and join the WTO.
IL a positive Morality or Weak Law-
Starke has expressed the view that IL is a weak law.
Holland has remarked IL is the vanishing point of jurisprudence, because its followed by courtesy and hence it could not be kept in the category of law.
Some jurisprudents opine that the IL is only the bundle of moral principles and the states are not bound to follow them strictly, and IL is a mere positive morality.
Austin- IL is not a true law, but a code of rules of conduct of moral force only.
HLA Hart- also consider that IL is a mere morality, because there is no element exist which law requires like
- It has not binding force on states.
- It is not back by the Sanctions.
IL is a weak law
Strong Law
No superior political authority.
The development of international organization proved to be the legal organ of IL for example UN organ help to focus attention upon the need for mutual observance of the rules.
No legislation machinery
The constitution instruments of the international organization represent an advanced stage of the development of international law. It has introduced a quasi-legislative element in the law making process at the expense of contractual element, facilitating a quicker response to the problems of international social order.
Lack of sanctions.
It has the sanctions power- Common law of England is the true example of it. The constitution of united state of America provides sanction to international law, as it part of their law. Further the charter of United Nations proclaims sanctions behind it.
Lack of enforcement power or effective executive authority
For example Art 21 of the constitution of WHO bind its member states to undertake the obligation to take action relative to the acceptance of the conventions.
Lack of judiciary mechanism.
International Court of Justice. And under the Art 59 of ICJ its decisions are binding upon the parties to a disputes.
Importance of International law-
International law in one shape or another has existed in almost all climes and ages. It is true that conception of a family or one world was foreign to the ancient world, but nevertheless nations came into contact with one another and as a result of the contact there sprang up international trade, rules regarding the declaration and conduct of war, treaties and diplomatic privileges..
To grow economically, politically, and technologically state has to interact with each other.
Traditional IL and new IL- the independence of the nations is one of the corner stones of the new law of nations. The traditional IL was envisaged as a law governing the relations of sovereign states with each other. And the new international law not only the states but also considering the international organization, and to some extant the individual have the rights and duties towards IL.The development of league of nations was a great landmark for this new development which culminated in the establishment of the united nations.
Ancient Interne national law.
The history of international law can be seen in ancient history as well, in Ramayana, Mahabharat, and Bhagwat geet . the rule of governing war, peace and neutrality based on Dharma. They attached the due importance to the inviolability of a duta or ambassador.
The elaborated form of International law the government and foreign affairs can be seen in Kautilya Arthashatra and Nitishatra of Kamandka,
Oppenheim- Observes that Greeks left to history the example that independent sovereign State can live in a community which provides a law for the national relations of the member States provided that there exist some common interest and aims which bind these state together.
Romans- also advocated the importance of international law.
Crisis/ Challenge in IL.
Rapid scientific and technological progress.- this brought the crisis in IL, this crisis is nothing more than a tension between the needs of stability and the demand of change. The new demands of the new countries did not mean total rejection of traditional legal system but merely readjustment of the old law to the new conditions.
In times of rapid political economic, and technological changes, the development of law both within and among states tends to lag behind, its content becomes unstable and uncertain, and its effectiveness is minimized.
The braking of Soviet Union- crisis of world power.
Nuclear war.
Environment degradation.
Terrorism
Suggestion for improving IL-
- ICJ should be compulsory jurisdiction.
- International criminal court should be established.
- IL should be codified.
- Enforcement machinery should be strengthened.
- International bureau of investigation and prosecution should be established.
- UN charter should be amended and it authorized to intervene in domestic jurisdiction.
Conclusion- it is the body of rules which regulates the conduct and relations of the members of international community. The contention that state alone are subject of international law is not only inconsistent with the changing character of international law but has become completely obsolete and inadequate. And it is not static but like a all living law. We can not ignored the importance of IL, by saying that it is a weak law, because municipal law operates in centralized manner and IL operates in decentralized manner.
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