Public International law –
Definition of international law, Oppenheim, fenwick, Whiteman, starke, nature of international law
Introduction-
The term ‘International Law’ or ‘Law of Nations’ has been used in contradistinction to the ‘National Law’ or ‘Municipal Law’ which means the law of country.
International Law is, generally, above and outside, the national laws of the various States and to some extent operates on the territories of all the States.
The question whether it can be called a superior law remains in doubt in spite of the growing acceptance and respect for international law among the member-states.
International Law deals with States as legal and political entities and it applies to all the States equally without any regard to their size and power.
However, the powerful States have a peculiar tendency to interpret the principles of international law in such a manner as to suit th ei r interest and convenience.
Recent geometrical advances in science, technology and industry have brought to the fore one stark fact afford to lead an isolated that no nation, howsoever, big or small, can life.
There is more and more collaboration between the nationals of one country with the nationals of other countries. Multi national companies have sprung up which have their offices in many countries.
Today the scope of international law has extended from the preservation of peace to regulate the vario us activities of international life, like space expeditions, ocean floor explorations, protection of human rights and global environment, management of international financial system, etc.
All these factors and developments emphasise the need for an intern at A law, how ional law in the modem scenario. soever important and crucial, is not of much use if it is not properly defined and codified.
There is no single universally accepted definition of international law, though some good attempts have been made in t hat direction.
Definition of International Law-
The words ‘international law’ were used for the first time by eminent British jurist, Jermy Bentham in 1780. Since then, these words have been used to denote the body of rules which regulate the relations among States.
Though international law can be traced to ancient Greece, Rome and India, it cannot be denied that the public international law which we know today, has come to us through Europe. It is determined by the modern European system.
Oppenheim’s definition
Professor Oppenheim has defined international law in the following words :
“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”.
The above definition given by Oppenheim in 1905 has become obsolete and inadequate.
The definition has been subject to the following criticism :
(i) The definition takes into account of the relations of ‘States’ only. But, presently, international organisations and institutions are also regarded as subjects of international law.
They have been given rights and duties under international law, even though they may not have all the rights and duties that States have. Certain activities of multinational corporations are also regulated by this branch of law.
(ii) International Law also provides certain rights and duties to individuals. It has been so, particularly, after the establishment of the United Nations Organisation.
Universal Declaration of Human Rights and International Covenants of Human Rights further confirm that the individuals have become not only the subjects of international law but can also directly claim rights and remedies provided under international law.
Above all, the Charter of the U.N. begins with the words “we the people of the United Nations”. Thus, the present international law cannot be regarded as the law governing the relations between States.
but must be regarded “as the common law of mankind in an early stage its development” ( Jenks of ).
At present, it also governs relations between States and international organisations, between States and private persons, and between international organisations and private persons (Judge Jessup has
therefore suggested an alte rnative name “Transnational law” to include all law which regulates actions or events that transcend national frontiers.
Modern definitions
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”.
The definition takes into account the changes that have taken place after the Second World War. The words ‘members of the international community’ include States, international institutions, individuals and non- State entities. The term ‘general principles is also incorporated in the definition.
Whiteman : “International law is the standard of conduct, at a given time, “”for States and other entities subject thereto”.
A brief but adequate definition; the words ‘other entities subject thereto’ may include international organisations, individuals and non-State entities.
Whiteman has also emphasised dynamic aspect of international law : “International Law is, more or less, in a continual state of change and development”.
Starke : “International law may be defined as that body of law which is composed for its greater part of the principles and rules of conduct which States feel themselves bound to observe, and, therefore, do commonly observe in their relations with each other, and which includes also :
(a) the rules of law relating to the functioning of international institutions/organisations, their relations with each other, and their relations with State and individuals; and
(b) certain rules of law relating to individuals and non-State entities so far as the rights and duties of such individuals and non-State entities are the concern of the international community”.
The definition of Starke takes into account the changing character of international law and truly reflects the present position of international law.
However, if an entity not enumerated by Starke ever comes within the scope of international law with the passage of time, the definition would again be subjected to criticism. Thus, the definition does not stand correct for all times to come.
Schwarzenberger : “International law is the body of legal rules which apply between sovereign States and such other entities as have been granted international personality”.
Thus, unlike Starke, Schwarzenberger very rightly preferred not to name the
entities whose rights and duties are regulated by international law.
According to him, international law. if and when grants international personality to any entity, or when international law would be capable of regulating rights and duties of any entity, its rules shall apply to them. It is immaterial if only certain rules regulating the rights and duties are framed for them.
Nature of International Law
Regarding the nature of international law there are two views. The traditional view holds that international law is composed solely of rules governing the relations between States only.
Thus, the traditional view restricts the domain of international law to the regulation of the conduct of States inter se. Those who hold traditional view are Oppenheim, Brierly, Hall, T. Gill, Hackworth et.al.
However the modern view holds that international law is dynamic in nature. As to the modern view, Fenwick’s definition of international law succinctly sums lip the contemporary viewpoint.
Others who have propounded similar views are Starke, Korowicz, Whiteman et. al. Jessup and Kelsen’s view lies between the traditional and contemporary viewpoints.
The dynamism of international law have expanded the horizons of it and acquired for it completely new dimensions.
There are various factors which have lent dynamism to international law:
1. The movement of the international protection and promotion of human rights
2. The emergence of international institutions having international legal personality
3. Several international Conventions.
International law can, therefore, no longer be adequately or reasonably defined or described as the law governing the mutual relations of the States.
International law is the law of an organised world community, constituted on the basis of States but discharging its community functions increasingly through a complex of international and regional institutions,
guaranteeing rights to, and placing obligations upon, the individual citizen, and confronted with a wide range of economic, social and technological problems calling for uniform regulations on an
international basis which represent a growing proportion of the subject matters of the law. In short, international law is the standard of conduct, at a given time, for States and other entities subject thereto.
Conclusion
On the basis of the above definitions one may conclude that
“International law is constantly evolving body of norms that are commonly observed by the members of international community in their relation with one another. These norms confer rights and impose obligations upon States and, to a lesser extent, upon international organizations and individuals”.
The above view takes into account both the new and classic definitions of international law. The classic view is supported by the fact that international law is primarily a system regulating the rights and duties of States and that is why it is also termed as the ‘law of nations’.
The modern view is supported by the fact that international law is a living and expanding code.
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