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describing rules, norms, and standards that apply between sovereign state and other
entities which are legally recognized as international actors.
International Law
Each country in the world formulates laws to govern the society in efficient manner and
ensure peace and security. Similarly, at the international level, when countries come
together at a common platform to formulate law that governs intercourse between them, it
is referred as international law.
In other words:
International law is the law of the international community. The term 'International Law' was
used by Jeremy Bentham in 1780. The expression Law of Nations is synonymous with the
term international law. It acts as a legal framework at global level to ensure stable and
organized international relation.
According to Gray:
International law or the law of nations is the name of a body of rules which according to
their usual definition regulate the conduct of States in their intercourse with each other.
According to Hall:
International law consists of certain rules of conduct which modern civilized States regard as
binding on them in their relation with one another with a force comparable in nature and
degrees to that binding the conscientious person to obey the laws of his country and which
they regard as being enforceable by appropriate means in case of infringement.
Present day modern international law was evolved during 15th century and was mainly
developed in European continent. Renaissance in Europe has played significant role in the
development of international law. Hugo Grotius is considered as most eminent personality
in the field of international law. He had articulated international order that consist of a
'Society of States' which should be governed by the law's, mutual agreement and custom
rather than by force and or warfare.
Two schools of international law, the naturalist and the positivist were established, following
the footprint of Hugo Grotius. Enaction of Westphalian System is major landmark in the field
of international law. It acknowledged the concept of independent sovereign entities known
as 'Nation State'. International law mainly came into limelight in the 19th and 20th centuries.
During 19th and 20th centuries, international law got its formal shape. Various pacts and
treaties were signed in this period which finally concluded in the formation of United
Nation. Various treaties, declarations, conferences are as follows:
Congress of Vienna (1815)
Congress of Vienna is known as watershed moment in the evolution of international law. It
is also referred as Vienna Congress, held in 1815. It was chaired by Klemen's Von
Metternich, an Austrian statesman. It was attended by ambassador of European states with
the objective to provide a long-term peace plan for Europe. Solving critical issues aroused
from the French Revolutionary War and the Napoleonic War were main agenda of the
Congress. It laid down the international rules such as rules with regard to International
River, categorization of diplomatic agent etc.
The main principle that evolved in it was to prohibit attack on undefended people and
before sinking enemy ship, attempt should be made to save the life of the crew. It was
codified by France and Great Britain.
Three agreed principles of the declaration were no privatizing, effective blockade and free
ship make free goods. This declaration redefined the relationship between belligerent and
neutral nations. It paved the new rules for the navigation in high seas.
The main provision of the covenant of League of Nations was to settle disputes through
peaceful methods such as arbitration, negotiation etc., before resorting to disputes. If any
member resorted to war, going against the principle of covenant of League of Nations, then
the member will be considered as an enemy of whole League of Nations. Permanent court
of International justice was established by the League of Nations. Due to various reasons,
league was not able to perform its cardinal objective which led to the outbreak of Second
World War, therefore new organization, the United Nations came into existence.
He said that there is no sovereign authority which provides for the enaction of international
law, rather it depends on the will of nation to ratify it. He described international law as
positive international morality consisting of opinions or sentiments current among nations.
Another jurist Holland also denied international law as a true law. He said that international
law is distinct from municipal law as it not supported by the authority of law. According to
him, international law is vanishing point of jurisprudence.
He also states that international law could not be kept in category of law because it lacks
sanction, which on another hand is integral feature of municipal law. Other prominent
jurists who supported this idea were Jeremy Bentham and Jethro Brown.
There are many theories which have discussed relationship between International
law and Municipal law, which are as follows:
Dualistic Theory (International law is considered as inferior to domestic law)
The chief propounder and supporter of this theory are Triepel and Anzilotti. They view
international law and municipal law different from each other. Both of them hay different
sources and scopes. Dualistic believes that international law does not form part of domestic
law of State. International law is considered as inferior to domestic law. According to Triepel,
the difference between international law and municipal law is in the area of subject,
principles, origin, source, substance of law and subject matter.
Transformation Theory
It is another perspective, which says that with time international law undergoes
transformation into municipal law. Hence, international law acts as a source of municipal
law. Through transformation procedure, rules set by international treaties are extended to
individual of state through ratification of treaty and enaction of law.
Adoption of Kyoto protocol, convention on child labour by the nations are some of the
examples of transformation theory.
Delegation Theory
In reaction to transformation theory, delegation theory came into existence. According to
this theory, international law did not directly transformed into municipal law, but it is
decided by State on its own when the provisions of a treaty or convention are to be made
effective and in which manner. Legislature of State is final body in formulating international
law into municipal law.
According to Starke:
The material source of international law may be defined as the actual materials from which
international lawyer determine the rules applicable to given situation.
Article 38(1) (A) of the International Court of Justice (CJ), uses the term international
convention and emphasises upon treaties as a source of contractual obligation, but also
acknowledges the possibility of a State expressly accepting the obligation of a treaty.
Treaty and convention are based on the theory of consent and auto-limitation. Protocols are
also included under treaty and convention. When a country signs and ratifies treaty and
convention, then it becomes obliged to its provision. The provision of treaty can be both
binding and voluntary in nature. Geneva, Child Labour Conventions are some of the
examples of international treaty and convention.
Treaties and conventions ensure help in creation of rules of law at global level. Treaties can
be of two type viz. law making treaty and treaty contract. Former refers to making various
rules and regulations, similarly what legislation does for the State. The UN Charter is perfect
example of law-making treaty. Later refers to contract between two or more nations.
Article 38(b) of the Statute of International Court o Justice recognises 'international custom,
as evidence of general practice accepted as law', as one of the sources of international law.
During 19th and 20th centuries, most of customary sources of international law have been
codified into treaties and conventions, moreover many of them are gradually displaced by
the treaty. However, still customary law are playing significant role in the international law.
Judicial Decision
Judicial decisions of International Court of Justice and Arbitral tribunals have also acted as a
source of international law. Article 59 of the statute of the International Court of Justice
provides that the decision of the court will have no binding force except between parties
and in respect of that particular case. However, decision can establish new precedent and
international organisation and States can enact law following the interpretation of
judgment. In comparison to above listed sources, it is not direct source of international law.
It is important to note that sometimes judicial decision by State may also become source of
intentional law. It can be through two types, one through established precedent and other
through customary law.
International Comity
Principle of comity means, when any nation behaves and shows attitude in particular way
and in return other nation also behaves in similar way and show same attitude. Jurists
like Professor Oppenheim have supported it and said that principle of comity, helped in
development of international law. It even acted as a base of mutual relationship between
nation and organisation.
State Paper
State paper includes letter, MOU etc., exchanged between nations. It is the result of
diplomatic relations between the States. In a study by some researchers, it was found that
state paper helped in solution of disputes and acting as a motivational force to create new
law at international level.