Nature and definition of international law
Introduction
Every society, irrespective of its population, makes a legal framework (law) under which it functions and develops. It is permissive in nature as it allows individuals to form legal relations with rights and duties and restrictive in nature as it punishes the wrong-doers. These laws are referred to as Municipal laws. The world today requires a framework through which interstate relations can be developed. International Laws fill the gap for this.
The term ‘International law’, also referred to as Laws of Nations was first coined by Jeramy Bentham in 1780. Every country is referred to as ‘state’ in International Law.
Meaning
The modern international law system is a product of only the past four hundred years bearing witness to the influence of various writers and jurists of sixteen to eighteenth century, who formulated some of its most fundamental principles
International laws are a set of rules, agreements and treaties that are binding between countries. Countries come together to make binding rules that they believe will benefit the citizens. It is an independent system of law existing outside the legal framework of a particular state.
What is the aim of International law?
The existence of international law is the result of increased interstate engagement. It mainly aims to maintain international peace and security among different states. It also helps in:
promotion of friendly relations among the member states (members of the International community, for example, United Nations),
providing for basic humanitarian rights,
to solve International problems through international cooperation,
to refrain the state from using threat or force over the territory of any other state to provide for right to self-determination to people, and
to use peaceful methods to settle international disputes are few of its functions.
Who are the subjects of International Law?
It is referred to as entities who have a legal personality, with certain rights and duties under the international legal system.
State is considered to be the primary and original subject of international law. However, it also regulates the actions of other entities:
Individuals – Common people of any state are also believed to be the subject of international law.
International Organizations – It is an association of states, established by a treaty between two or more states. International Organizations too have a legal personality and are considered to be the subject of international law. For example, the United Nations.
Multinational Companies – They own and operate their corporate entities in at least one other country aside from the place where it was incorporated, therefore it is established in more than one nation.
All are considered to be subjects of international law and are enshrined with both rights and duties.
However, in the past, states were the only subjects of the international law but with the increase in the scope of the international law, many other entities like the one discussed above have been given international personality. So now the question arises, whether they may be treated as the subjects of international law and if they are given the international personality, what is the criteria determining their qualification to be the subject of the international law. So there are different theories for determining the same. The most prominent of them are:
Realist Theory
According to this theory, only the Nation/States are considered to be the subject of the international laws. It relies on the principle that it is for the nation/state that the concept of international law came into existence. These nations/states are distinct and separate entities, capable enough to have their own rights, obligations and duties, possessing the capability to maintain their rights under international law.
Prof. L. Oppenheim being the strong supporter of this theory believes that as the law of nations is primarily a law between the states, to that extent, subjects of the law should be nations only.
However, the theory has been criticized on the fact that it fails to explain the case of slaves and pirates as under international law, slaves have been conferred with some rights, while the pirates are treated as enemies of mankind.
Fictional Theory
Supporters of this theory suggest that the subjects of international law are the individuals only and that legal order is for the well-being of the individuals. They firmly believe that the Nation/state are nothing but aggregate of individuals as subjects.
Prof. Kelsen is the supporter of the theory and believes that the duties of the states are ultimately the duty of the individuals of the states and there is no difference between the international law and municipal law and have been made to be applicable on the individuals only.
Even if the theory of Kelsen appears logically sound, it is seen that the international law’s primary concern is with the rights and duties of the states.
Functional Theory
Both the Realist and the Fictional Theory take on an extreme course of opinion, but, according to Functional Theory, neither state nor individuals are the only subjects. They both are considered to be the subjects of modern International law as they both have recognized rights, duties and obligations. Along with them, several other entities, like African Union, have been accepted as subjects of international law.
In the present times, individuals have been conferred with certain rights and duties, for example, International Covenant on human rights. Moreover, it is agreed that international organisations are also the subjects of international law. The International Court of Justice held that the United Nation is an international person and is a subject of international law, capable of having rights and duties.
The Sovereignty of states
It’s the idea that the state is supreme and it can’t be a subject to other states’ rules and regulations. No state can be forced to sign a treaty. They are free to accept or decline to sign an international treaty or agreement.
human rights, justice and equality, like the Universal Declaration of Human Rights.
Unity and Strength
This law has brought unity among different nations/states as no one state can be separated from the other. Every state has become the need of the other one.
For example, the problem of global warming. Every country emits greenhouse gases which is further contributing to global warming and the impact of the same will be felt by all the countries. So, no country can combat global warming alone and will need international laws and cooperation to curb the problem.
Demerits
No Apparent Authority
There is no authority for the enforcement of the law. Only the International Court of Justice is present but it can’t settle certain matters. Moreover, once a decision is given by it, there is no such power or authority which can get it enforced.
No Legislative Machinery
As the international laws are based on treaties and conventions, they are interpreted by states according to their self-interests.
Lack of Effective Sanctions
There is no fear of sanctions, which has resulted in laws being violated frequently by the states.
Inability to Intervene
According to Article 2(7) of UNO Charter, UNO cannot interfere in the domestic matters of the states. It has been seen in such situations, international laws are ineffective and weak.
Conclusion
International law is a set of rules which are binding between countries and aims to ensure security and peace among various nations. The subject of question under international law isn’t only the Nation/state but can be an individual also. Moreover, it has emerged through a number of sources which are codified in Article 38 of the ICJ statute, according to which, customs, treaties and general principles are considered to be the source of International Law. International law is there to maintain world order and peace, settle various disputes among different nations/states and individuals and to provide fundamental rights. However, there are still various shortcomings due to which international relations are suffering.
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