International Law : Meaning, Concept, Types

INTERNATIONAL LAWSEvery society, ignoring of its population, creates a legal framework (law) according to which it functions and develops. It has a permissive nature because it allows individuals to create legal relationships with rights and obligations. And a restrictive nature because it punishes wrongdoers. These laws are mention as municipal laws. Today’s world requires a framework through which interstate relations can develop. International law fills this gap.

The term ‘international law’, also refer as the laws of nations. It was first originate by Jeramy Bentham in 1780. Each country is refer as a ‘state’ in international law.

Meaning of International Law(IL):

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The modern system of international law is a product of last 400 years. It bears witness to the influence of various writers and jurists of the sixteenth to eighteenth centuries who draw up some of its most fundamental principles.

IL is a set of rules, agreements and treaties which binds two or more countries. Countries come together to create binding rules that they believe will benefit citizens. It is a separate legal system existing outside the legal framework of a specific state.

Aim of International law:

The existence of international law is the result of increased interstate involvement. It focuses primarily on maintaining international peace and security between different countries. It also helps in:

  • promotion of friendly relations between member states (members of the international community, e.g. the United Nations),
  • ensure basic humanitarian rights,
  • solve international problems through international cooperation,
  • refrain from a state using threat or force over the territory of another state to secure the right of people to self-determination, and
  • using peaceful methods to settle international disputes are only a few of its functions.

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Subjects of International Law:

It refer to as entities that have legal personality, with certain rights and obligations according to the international legal order.

The state is consider the primary and original subject of international law. However, it also modulates the actions of other entities:

  • Individuals – Ordinary people of any state are also consider to be the subject of international law.
  • International organization – This is an association of states establish by a treaty between two or more countries. International organizations also have legal personality and are consider subjects of international law. For example, the United Nations.
  • Multinational Corporations – They own and operate their legal entities in at least one other country. Therefore it establish in more than one country.

All of them are consider subjects of law of nation and both rights and obligations are enshrined in them.

However, in the past, the only subjects of international law were states. But with the increasing scope of international law, many other subjects, such as the one discussed above, acquired international personality. The question now arises as to whether they can treat as subjects of international law. And if they are granted international personality, what are the criteria determining their qualification to be subjects of international law. So there are different theories to determine the same. The most prominent of them are:

Realist Theory:

According to this theory, only the nation/states consider the subject of international law. It is based on the principle that the concept of international law originate for the nation/state. These nations/states are distinct and separate entities. Sufficiently capable of having their own rights, duties and responsibilities, having the capacity to maintain their rights under international law.

Prof. L. Oppenheim, who is a strong supporter of this theory. He believes that since the law of nations is primarily a law between states. The subjects of law to this extent should only be nations.

However, the theory has criticized for failing to explain the case of slaves and pirates. As slaves were grant some rights under IL, while pirates treated as enemies of humanity.

Fictional Theory:

Promoter of this theory argue that the subjects of IL are only individuals. Also the legal order is for the welfare of individuals. They firmly believes that a nation/state is nothing but an aggregate of individuals as entities.

Prof. Kelsen is a supporter of this theory and believes that the duties of states are ultimately the duties of individual states. And there is no difference between IL and common law and they were created to apply only to individuals.

Although Kelsen’s theory seems logically correct. It can be seen that the primary concern of IL is the rights and obligations of states.

Functional Theory:

Both realist and fictional theories take an extreme view. But according to functional theory, neither the state nor individuals are the only subjects. Both are consider subjects of modern IL because both have recognized rights, duties and obligations. Along with them, several other entities such as the African Union have accept subjects of IL.

Currently, certain rights and obligations are granted to individuals. For example- the International Covenant on Human Rights. Moreover, it is agreed that international organizations are also subjects of IL. The International Court of Justice ruled that the United Nations is an international person. And is a subject of la of nation that can have rights and obligations.

Two branches of International Law:

  • Jus Gentium

The word is mention in Latin as the “laws of nations”. It consider as a set of rules that mutually govern the relationship between two nations and do not form part of a legal order or law.

  • Jus Inter Gentes

This means the “law between nations/people”. It consider to agreements and treaties that are mutually recognize by both countries.

Types of International Law:

  • Public International Law:

It refers to the rules and regulations governing international relations between various states and international institutions. It lays down rules concerning all of humanity: the environment, international trade, the ocean, human rights, etc.

Public international law applies to international organizations such as the United Nations (UN) and the World Trade Organization (WTO).

Aspects of public international law:

Custom – consistent state practice based on Jurisprudence, i.e. the belief that to be done, there is a legal obligation to do so.
Globally accepted standard behavior, jus cogens.
Legal systems refer as contracts.
For example, the Kyoto Protocol, a climate agreement, has many countries as signatories to reduce their greenhouse gas emissions to protect the environment.

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  • Private International Law:

It also refer as “conflict of laws”. The phrase was first used by Ulrich Huber in his book “De Conflictu Legum Diversarum in Diversis Imperiis” in 1689.

Private international law deals with the relationship between citizens/private entities of different countries. People from different parts of the world often interact and create legal relationships.

For example, an American man and an African woman were married in India and now live in Los Angeles. If they ever wanted to divorce, the rules of private international law would determine where they would have to divorce, either in the US or in an Indian court.

The same applies to business. Globalization has led to trade activities between different countries. For example, if you are cheated by a personal/private entity or organization of a foreign country, the rules of private international law will apply in the event of a lawsuit.

  • Supranational Law:

It refers to a situation where a nation/state surrender to a court. It’s because of its choice of right to make certain judicial decisions. Which will take precedence over decisions made by national courts. This distinguishes it from public and law of nation. For example, transnational law is represent by the European Union (EU). All courts in EU member states are revoke by the European Court of Justice in accordance with EU law.

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