Nature and the characteristics of International Law

Abstract
This is totally the term based paper in the master level of political science, central
department Kirtipur, which attempts to focus on the concepts and the perception made in the
field of nature and characteristics of the international law. The study reveals the importance
of International law with its development regarding its legal status whether this law is ‘law’
in the true sense or not, it is still under heated debate among jurists. As it is in controversial,
some writers’ strong opinions have tried to clarify aspect of International law.

Key words
Natural law
International Law
Private International Law
Public International law
Controversial law
Municipal law
Customary law

Introduction
International law is defined as the sum of rules, principles and standard governing the
relation among the states by the norms mutually agreed upon by them. In other words, it is a
set of rules generally regarded and accepted as binding in a relation between states and
nations. It serves as a framework for the practice of stable and organised international
relations.
Most of the people believe that it is not a true law. According to them it is nothing more
except the international morality consisting of opinions and sentiments working among
sovereign nations of the world. As it is not binding and is unsupported by the authority of a
state, there is no capacity of sanctions against law violators. So, they support their view by
saying that international law is not law but morality having only 41 moral force. Scholars like
Hobbes, Austin, Holland, Zimmerli, Willoughby, etc., emphasis that international law is not
law. Holland even went to the extent of calling it as 'the vanishing point of jurisprudence'. For
him it is law by courtesy only, because it has only moral sanction and no teeth. It means it is
applicable only if states make themselves bound morally to accept it otherwise it has no
adjudicative authority. Other Scholars like Hall, Lawrence, Oppenheim, etc., maintain that
international law not only operates as law but is distinct from international morality both with
regard to the nature of its rules as well as its sanctions. Oppenheim however admits that
international law is a weaker law, because 'it is a law between and not above the state.’

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Methodology
The paper is based on secondary sources of information. The papers published in various
journals, book published by various writer were reviewed to develop background for the
present paper. Some materials were also searched through electronic databases such as
internet and Google scholar to support and get more additional information.

Discussion/Interpretation/Analysis
International law is defined as a system of agreements treaties and between nations
that governs how nations interact with other nations, citizens of other nations, and businesses
of other nations. International law has mainly two distinct categories. "Private international
law" deals with controversies between private entities, such as people or corporations, which
have a meaningful relationship to more than one nation. For example, lawsuits arising from
the toxic gas leak in Hetauda, Nepal from industrial plants owned by Unilever company, an
Indian corporation would be considered a matter of private international law.
"Public international law" concerns the relationships between nations. These include
standards of international behaviour, the laws of the sea, economic law, diplomatic law,
environmental law, human rights law, and humanitarian law. Some principles of public
international law are written, or "codified" in a series of treaties, but others are not written
down anywhere. These are known as "customary" laws, and nations consent to them by doing
nothing.
Since most international law is governed by treaties, it's usually up to the individual
nations to enforce the law. However, there are a few international organizations that enforce
certain treaties. The most notable example is the United Nations, which has 192member
states.
International law is a distinctive part of the general structure of international relations.
In contemplating responses to an international situation, states usually consider relevant
international laws. Although considerable attention is invariably focused on violations of
international law, states generally are careful to ensure that their actions conform to the rules
and principles of international law, because acting otherwise would be regarded negatively
by the international community. The rules of international law are rarely enforced by military
means or even using economic sanctions. Instead, the system is sustained by reciprocity or a
sense of enlightened self-interest. States that breach international rules suffer a decline in
credibility that may prejudice them in future relations with other states. Thus, a violation of
a treaty by one state to its advantage may induce other states to breach other treaties and
thereby cause harm to the original violator. Furthermore, it is generally realized that
consistent rule violations would jeopardize the value that the system brings to the community
of states, international organizations, and other actors. This value consists in the certainty,
predictability, and sense of common purpose in international affairs that derives from the
existence of a set of rules accepted by all international actors. International law also provides
a framework and a set of procedures for international interaction, as well as a common set of
concepts for understanding it.

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 According to Encarta Encyclopaedia, "International Law is principles, rules, and
standards that govern nations and other participants in international affairs in their relations
with one another. In other words, International law is the law of the international
community." Following are some of the definitions of international law by different jurists.
Fenwick says, "It is the body of rules accepted by the general community of nations, as
defining their rights and the means of procedure by, which those rights may be protected or
violations of them redressed."
Briefly defines it as, "It is the body of rules and principles of action, which are binding
upon civilized states in their relations with one another."
According to J.G. Starke, "It is that body of law, which states feel themselves bound to
observe and therefore do commonly observe in then relations with each other and which also
includes the rules of law relating to the functioning of international institutions or
organizations, their relations with each other and their relations with states and individuals.
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 international community”.
There always the question is how to reconcile the views of its proponents and
opponents. The controversy rests upon the definition of law, which one may choose to adopt.
Austin would not accept it as true law because it is not the will of a political superior. Holland
would reject it as law because it cannot be enforced by a sovereign political authority. To
these writers, law implies a lawgiver and an institution capable to enforce it. Thus, those who
measure international law by national or municipal law believe that absence of centralized
legislature, executive and judicial authority disqualified it as true law.
The only strong solution of this controversy is solved to a large by Oppenheim's
definition of law. He defines law "As a body of rules for human conduct within a community,
which by common consent of this community shall be enforced by external power." Now the
family of nations may be regarded as international community where have grown certain
rules to govern inter-state conduct and the application of these rules is sanctioned by the
consent of international community.
According to Bentham’s classic definition, international law is a collection of rules
governing relations between states. It is a mark of how far international law has evolved that
this original definition omits individuals and international organizations—two of the most
dynamic and vital elements of modern international law. Furthermore, it is no longer accurate
to view international law as simply a collection of rules; rather, it is a rapidly developing
complex of rules and influential -though not directly binding—principles, practices, and
assertions coupled with increasingly sophisticated structures and processes. In its broadest
sense, international law provides normative guidelines as well as methods, mechanisms, and
a common conceptual language to international actors—i.e., primarily sovereign states but
also increasingly international organizations and some individuals. The range of subjects and
actors directly concerned with international law has widened considerably, moving beyond
the classical questions of war, peace, and diplomacy to include human rights, economic and
trade issues, space law, and international organizations. Although international law is a legal
order and not an ethical one, it has been influenced significantly by ethical principles and
concerns, particularly in the sphere of human rights.

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Characteristics of International law
International law is distinct from international comity, which comprises legally
nonbinding practices adopted by states for reasons of courtesy (e.g., the saluting of the flags
of foreign warships at sea). In addition, the study of international law, or public international
law, is distinguished from the field of conflict of laws, or private international law, which is
concerned with the rules of municipal law—as international lawyers term the domestic law
of states—of different countries where foreign elements are involved. Therefore, to clarify
the nature and characteristics of international law following points should be considered.

Universal in nature:
International law is not only bounded by narrow circle, it also covers the broad areas. It is
applied in the different status, international organization and sometimes is even in persons.
It also covers environment, weather, universe, seas and oceans even outside the boundary of
the state, so it is a universal law. It is equally applicable to everyone.

Natural law:
The nature of international law is similar to the natural law. This law is formulated with
the consent of knowledge and applies to everyone. Although, one who violate this law does
not get punished but anyhow he/she must bear the compensation of the destruction. This
law is not the special principle law but also is equal to everyone. No one could escape away
from its boundaries.

Evolved through the consent of the states:

International law is the result of concurrence will of the states and the gradual process of
customary practices among the states. Almost all the states are binding by agreement,
ratification, accession and approval to the international law.

No uniformity on approaches:
For a long time, there was a controversy about whether international law is really a law,
or it is a branch of ethics or it is a weak law or even a vanishing point of jurisprudence. John
Austin deny that the title law should not be used for the international law because there is no
authority to issue law, not backed by sanctions and no court to interpret it. Holland argues
that it is a vanishing point of jurisprudence because its rule is uncertain and vague, no
authority to enforce and interpret and UN charter article 2 (7) states that a state cannot be
interfered generally. Some other scholars deny these views and accept it as a law but weaker
than state law. This last view is regarded true in the present context.

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Combination of treaties and customs:
There are various combinations of treaties and customs that give the bases to the
International law. These treaties are: Treaty of Westphalia (1648), American Declaration of
Independence (1776), French Declaration of the rights of Man and the Citizen (1789), Vienna
Act (1815), Paris Declaration (1856), Hague Convection (1899 & 1907), Treaty of Versailles
(1919), Covenant of the League of Nations (1919), Locarno Treaty (1925), Paris Pact (1928),
Geneva Convention (1929), UN Charter (1945) etc.

Based on five principles:

Mainly International law is based on five principles. Sovereign equality, Pacta Sunt
Servanda (Treaties must be observed in good faith), peaceful settlement of international
disputes, non-use of force and non-interference are its bases.

Contribution of various scholars:

There are various scholars in the different time periods devoting their views in the development
of International law. Some of the name of the scholars who contributed are mentioned below.
Naturalists- Francisco de Victoria (Roman, 1483-1556), Francisco Suarez (Spain, 1548-1617),
Gentilli (Italy, 1552-1608), Hugo Grotius (Dutch, 1583-1645), Zouche (Eng, 1590-1617), Samuel
Pufendorf (German, 1632-1694).
Positivists- Bynkershoek (Dutdh, 1673-1743), Vattel (Swiss, 1714-67), Jeremy Bentham (Eng,
1748-1832), John Austin (Eng, 1890-1859) etc.

Main purpose to regulate international relations:

For making strong inter-state relations, to control activities against human rights, to
maintain peaceful environment, to establish equality in human community, to eradicate all
types of discriminations existing in human society.

Paradigm shift after the end of bipolar system:

After the end of cold war between socialists and capitalist block, international law got
comfortable environment to facilitate the process of globalization on economy,
democratization, good governance, refugee settlement, human rights, privatization,
inclusiveness in power, liberalization, co-operation etc.

Consent not force is basis of law:

International law is not made forcefully and bring into practice due to any intense
pressure. This law is made by agreements and treaties between nations that governs how

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nations interact with other nations. This law is the result of positive thinking, knowledge and
good skill which is always in the positive favour of the consent not to control others. Municipal
law is basically made to control strictly and even encourage for punishment to those who
violate the law, but International law is carried out in the sense of natural law which is made
in positive attitudes with good knowledge and skills.

Evolved through the consent of the states:

International law is the result of concurrence will of the states and gradual process of
customary practices among the states. Almost all the states are binding by agreements,
ratification, accession and approval to the international law.

Law of nation:
In the broader context, the law of nations has become synonymous with the term
customary international law, which describes the body of rules that nations in the
international community universally abide by, or accede to, out of a sense of legal obligation
and mutual concern. In ascertaining whether a rule constitutes a norm of customary
international law, courts have traditionally consulted the works of jurists, writing professedly
on public law; or by the general usage and practice of nations; or by judicial decisions
recognizing and enforcing that law.
Sources of international law generally include international conventions, whether
general or, establishing rules expressly recognized by the contesting states; international
custom, as evidence of a general practice accepted as law; the general principles of law
recognized by civilized nations; (and) judicial decisions and the teachings of the most highly
qualified publicists of the various nations, as subsidiary means for the determination of the
rules of law. While not exhaustive, the list of principles that may be said to have ripened into
universally accepted norms of international law, includes the proscriptions against piracy,
slave trade, attacks on or hijacking of aircraft, genocide, and war crimes.
"With respect to other types of violations, because customary international law is
created by the general customs and practices of nations and therefore does not stem from
any single, definitive, readily-identifiable source, we have advised district courts to exercise
extraordinary care and restraint in deciding whether an offense will violate a customary
norm."

More dynamic by science and technology:

With the rapid development of science and technology, the globe has changed into a
small village, but scope and subject matters of the international law have been vastly
increased. In this context, International law must cope new challenges related to the
possibility of warfare, overflow of immigration, refugee crisis, rights of marginalized
communities, world trade, property right and so on. Therefore, it has more dynamic with the
peace of time and challenges.

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Universal justice in the aim of International law:
To meet the aim, it regulates human activities in three ways- prohibitory, mandatory and
permissive. Its violation leads to punishment. No state can do activities such as-against peace
and Nuremburg principles, activities for genocides and racial discrimination, deeds against
human rights etc. All states must observe prohibitory, mandatory and permissive actions
properly.

Weaker than municipal law:

In International law, rules are uncertain and vague, no authority to issue, enforce and
interpret the law, no decentralization of legal function, affected by powers, sovereignty of
states, no backed by effective sanctions.

Conclusion
We know the ‘decade of international law’ has come and gone and the international
community has entered the twenty-first century. At the start of the 1990s, the end of the
‘cold war’ brought uncertainty but heralded a new era of cooperation among the five
permanent members of the Security Council and a consequential increase in the influence of
the United Nations. The world is too uncertain to predict whether the present decade will
witness further fundamental changes in the organisation of the international community, but
the challenges facing international law are no less pressing.
International law comprises a system of rules and principles that govern the international
relations between sovereign states and other institutional subjects of international law. It
operates alongside international diplomacy, politics and economics. The most cogent
argument for the existence of international law as a system of law is that members of the
international community recognise that there exists a body of rules binding upon them as
law. States believe international law exists. This acceptance of the reality of international law
by the very persons to whom it is addressed exposes the weakness of those who argue that
international law does not exist. While international law has never been wholly dependent
on a system of institutionalised enforcement, the absence of a ‘police force’ or compulsory
court of general competence does not mean that international law is impotent. There is no
doubt that a very important practical reason for the effectiveness of international law is that
it is based on common self-interest and necessity. Today, international society is more
interdependent than ever, and the volume of inter-state activity continues to grow.
International law is needed to ensure a stable and orderly international society.
It would be a mistake to conclude that international law is a perfect system. There is
much that could be reformed and enhanced. There is a general lack of institutions; the
content of the rules of international law can be uncertain; states may elect to ignore
international law when their vital interests are at stake; states are able to violate basic rules,
such as the prohibition of violence without fear of being coerced. The juridical force of
international law does not derive from a traditional conception of law, nor is it based on
consent, or derived from natural law. Its force comes from the fact that it is needed to ensure

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that international society operates efficiently and safely. ‘Law’ is the hallmark of any political
community and is necessary for the society to function.

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Thanks