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The term international law has been defined in a variety of ways by different jurists. Some of the definitions may be given as under: In the view of European Scholars, modern International Law is determined by the modern European system. According to Oppenheim, International Law is "essentially product of Christian civilization and began gradually to grow from the second half of the Middle Ages." This view is subject to criticism because there are several such principles and rules of International Law as existed in their developed form in the ancient period. Some of them are such as existed in their developed form in ancient India. The view of Oppenheim and other Western jurists that International Law owes its birth to the modern European system is not correct. International Law was in a developed state in the Ramayana and Mahabharat period
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LL.M. Ph.D
losing Nationality- Double Nationality-nationality of Married Women and Indian position
Servanda
come to us through Europe. It is determined by the modern European system. It will, therefore, be proper to refer it as 'modern international law.' Definition
Fourthly, "it is now widely recognised that International Law consists not only customary and conventional rules but also of General Principles of Law. Article 38 of the Statute of the International Court of Justice mention General Principles of Law Recognised by Civilized States' as the third source in order under which the sources of International Law are to be used while deciding an international dispute. That is to say, if the
Court does not find any International Treaty or International custom on a particular point under dispute, the Court may take the help of 'General Principles of Law Recognized by Civilized States'. As aptly pointed out by Lord McNair, it describes, 'the inexhaustible reservoir of legal principles from which tribunals can enrich arid develop public International Law."
In his view, only the definition of international law given by Soviet scholars (for example, by Vyshinsky given earlier), explains the question of thecontents and substance of international law. This definition (i.e, of Vyshinsky) is adaptable to the 'international law of various historical periods including the modern one."
He points out that international law possesses the following characteristics of law in general :
(i) it expresses the will of the ruling class; (ii) it is the aggregate of norms adjusting definite social relations; and (iii) it is guaranteed by enforcement measures. In his view, therefore, international law is a kind of law possessing legal validity; it is not what are called self-executing norms of morality. The words of a Chinese author, 'International law, in addition to being a body' of principles and norms which must be observed by every country, is also, just as any law
character of international law and truly reflects the present position of international law.
Basis of International Law After having arrived at the conclusion that International Law is Law in the true sense of the term, it is necessary to see as to what is the true basis of international law. There are two main theories in this connection. They are: (1) Theories as to Law of Nature and (2) Positivism. (1) Theories as to Law of Nature.— The jurists who adhere to this theory, are of the view that International Law is a part of the Law of Nature. In their view, States follow International Law, because it is a part of the Law of Nature. Explaining the view point of Natural Law Theorists, Starke has written : .............States submitted to International Law because their relations were regulated by higher law, the law of nature of which International Law was but a part" 67 I n order to understand this theory, it is necessary to understand the meaning of Law of Nature. In the beginning, Law of Nature was connectod with religion. It was regarded as the divine law. The jurists of 16th and 17th centuries secularised the concept of Law of Nature. Much of the credit for this goes to the eminent jurist, Grotius. He expounded the secularised concept of the Law of Nature. According to him, natural law was the dictate of right reason. His followers applied the law of nature as an ideal law which was founded on the nature of man as a reasonable being. International law was considered binding because it was in fact, natural law applied in special circumstances. Vattel, a famous jurist of 18th century also expressed the view that natural law was the basis of International Law. Pufendorf, Christian Thomasius, etc. are other prominent exponents of Law of nature. Criticism —The exponents of natural law are of the view that it is the basis of international law and has conferred binding force on international law. It may, however, benoted that each follower of the law of nature gives its different meaning.
They use it as a metaphor. Different jurists give its different meaning such as, reason, justice, utility, general interest of international community, etc. Hence the meaning of law of nature is very vague and uncertain. Moreover, the main defect of this theory is that it is not based on realities and actual practices of the States. Influence —Despite the above criticism, the Law of Nature has greatly, influenced the growth of International Law. 'Traces of 'Natural Law' theories survive today, albeit in a much less dogmatic form." bb The ideal nature of the Natural Law has also greatly influenced the growth of international law. (2) Positivism— Positivism is based on law positivum i.e. law which is in fact as contrasted with law which ought to be. According to the positivists, law enacted by appropriate legislative authority is binding. The positivists base their views on the actual practice of the States. In their view, treaties and customs are the main sources of International Law. The positivist's view was in vogue in the 18th century. Bynker- Shoek, one of the chief exponents of the Positivist School, wrote several books to popularise his views. In the view of the positivists, in the ultimate analysis, will of the States is the main source of International law.
1. Starke: As pointed out by Starke. "... .International law can in logic be reduced to a system of_rules depending for their validity only on the fact that States have consented to them. ""
follows that the dictum pacta sunt servanda cannot be the 'basic norm' of international law, it is itself a rule of international custom. (3) In practice, it is not always necessary to show that in regard to a particular rule of general international law, the State had given their consent. (4) There are some principles of international law which are applicable on States although States did not give their consent for them. The principle propounded under Article 2(6) provides that the organisation shall ensure that States which are not members of the U.N. act in accordance with the principles (contained in Article 2 of the Charter) so far as may be necessary, for the maintenance of international peace and security. (5) The norm 'pacta sunt servanda, "has been abandoned by most theorists, since it seems incompatible with the fact that not all obligations under international law arise from 'pacta ', however widely that term is construed, so it has been replaced by something less familiar ; the so-called rule that States shoula behave as they customarily have." (6) "Even apart from its lack of accord with reality the theory that international law rests on agreements is problematic in another respect. Declarations of will are, of course, in themselves pure facts which have legal effects only because some rule of law gives them such effects ." (7) According to the positivist view, treaties and customs are the only sources of international law. Grotius theory of law: Grotius made distinction between the Jus Gentiurn, the customary Lawof Nations (which he called Jus Voluntarium or Voluntary Law) and Jus naturrae or natural Law of Nations. He concentrated more on the natural Law and regarded voluntary law of less importance. The Grotians were somewhat between the Naturalists and the positivists. They maintained the distinction between natural and Voluntary Law of Nations but they considered positive or voluntary laws of equal importance to the natural laws. Thus, according to the Grotians, international law has originated not only from customs and treaties but also from natural law. This view, obviously, is not in conformity with thepositivist view. The positivist view that treaties and customs are
only sources of international law is also not in conformity with Article 38 of the Statute of International Court of Justice according to which General Principles of Law Recognised by Civilized Nations" are also the sources of International Law. As pointed out Manley Hudson, the provision relating to "the general principles of law recognised by civilized nation"serves a useful purpose in that it emphasizes the creative role to be played by the court. It confers such a wide freedom of choice that no fixed and definite content can be assigned to the term employed. It has widely hailed as a refutation of the extreme positive conception of international laws. (1) Theory of Consent.— In the view of the supporters of this theory, consent of States is the basis of international law. States observe rules of international law because they have given their consent for it. Positivists have given much support to this view. The chief exponents of this theory are Anzilotti, Triepel, Oppenhetm. etc. This theory fails to explain the basis of customary international law. In the view of the supporters of this theory, States are bound to observe customary rules of international law, because they have given their implied consent for their acceptance. This theory has been subjected to severe criticism by many jurists, such as, Starke, Brierly, Kelsen, Fenwick, etc. Following are some of the points of criticism levelled against the theory :-
(i) As pointed out by Starke, in practice it is not necessary to prove that the other State or States have given their consent n regard to a specific rule of international law According to Prof. Smith, all States are bound by international law, no matter whether theyhave given their consent or not. (ii) In regard to customary rules of international law, the basis of implied consent is far from correct. "The States are bound by general international law even against their will." Professor Kelsen has cited the example of new States, which get rights and duties under international law immediately after becoming the subject of International law. (iii) In the view of Fenwick, the theory of consent is not correct because it is against the principles and things which the States have been accepting since the beginning of
The constituent instruments of international organisations represent an advanced stage of the development of international law. They have "introduced a quasi-legislative element in the law making processes at the expense of contractual element, facilitating a quicker response to the problems of international social order What is true of the organs of the U.N. is also, even more, true of the organs of the specialized agencies of the U.N. For example, both the World Health Organisation (WHO)and the International Civil Aviation Organization (ICAO) carry out a wide range of activities which contribute to the development of International Law.
This has become possible due to the provisions of the constitutions of these specialized agencies. Under Article 21 ofthe Constitution of WHO, each Member has undertaken the obligation to take action relative to the acceptance of the Conventions (adopted by a two-thirds votes of theHealth Assembly) or agreement within a period of 18 months after its adoption by the Health Assembly. In case a Member does not accept the convention or agreement within the said time, it is required to furnish the Director-General with a statement of the reasons for non-acceptance. Article 37 of the I.C.A.O. convention authorises the l.C.A.O. to adopt regulations 99 with a wide variety of technical matters essential to the safe and swift operation of international civil aviation. According to Article 90, an annex may be adopted by a two-thirds majority vote of the members of the Council.
A regulation thus adopted comes into force three months after its submission to the member- States or within the time specified by the Council. unless the majority of contracting States register their disapproval with the Council." Under Article 38 of the I.C.A.O. convention, it a member finds it difficult or impracticable to comply with any of the international standards or procedures adopted by the Council, it is under the obligation to notify LC.A.O. immediately of the differences between its own practices and the practice established by the Annex. If the member concerned fails to notify or remains silent, it will amount to approval.
Under the Constitution of the ILO, members have undertaken an obligation to submit conventions and recommendations adopted by the conference by a two-thirds majority for the consideration of the national authorities competent to give effect to their provisions. Once accepted, these conventions become binding upon members. The legislative procedure of the ILO, when introduced in 1919, was a radical innovation in following three respects :
"The whole conception of a convention being adopted by an international conference by a two-thirds majority and authenticated by the President and the Secretary-General of the conference instead of being signed by plenipotentiaries was then new." (2) "An even more radical innovation than the substitution of adoption for signature was the participation in the act of adoption of non-government delegates voting independently. This has remained a unique feature of ILO procedure. "No less radical and unprecedented an innovation was the obligation to submit conventions adopted by the International Labour Conference by a two- thirds majority for parliamentary consideration irrespective of the attitude towards the convention of the representatives of the Government concerned. A brief reference may also be made to a similar provision in the Constitution of the Universal Postal Union (UPU) which provides that those postal administrations which do not respond to a proposal put to them by the International Bureau within a period of three months, will be considered to be in agreement with the proposal. As written by Codding, Jr., "The experiences of WHO and ICAO have a high potential value. Other international agencies could possibly adopt them profitably to their own use, particularly those agencies whose activities are of a technical nature. A combination of all the specialprocedures of ILO, WHO. ITU and UPU in one international organization provides speculation. In any case, it is becoming increasingly obvious that some major changes are needed in the international legislative process if the international community is to be able to keep up with the amount of work that is being delegated by States to international organizations. The WHO and ICAO have, at least, made a start." Now the world is witnessing the third phase of the post-war development of international organisations. The first phase started immediately after 1945 when U.N. system including the International Monetary Fund (IMF) and the World Bank was established. The second phase started near about 1960 when common market, organisation of European Co-operation and Regional Development Bank etc. were established. The third phase started near about 1973 and is still continuing. In the third phase, U.N. Environment Programme World Food Council, International Energy Agency (lEA) etc. have been established.
to the State in form of Directive Principles can be compared with the Universal Declaration of Human Rights and commonalities can be traced. Shri Subhash C Kashyap has prepared a detailed chart on the common principles in these two parts as well as certain other laws of India General Principles of International Law: India’s position and contribution on the general principles and major issues of contemporary international law such as recognition, self-determination, principles of non-use of force and non- intervention, state responsibility, prohibition of use of nuclear weapons, terrorism, legislative role of the UN Security Council, judicial review of the decisions of the UN organs, terrorism, legislative role of the UN Security Council, judicial review of the decisions of the UN organs, terrorism, jus cogens and erga omnes obligations, the jurisdiction of the International Criminal Court, emerging system of multilateral order and the United Nations and peaceful settlement of disputes, illustrates the importance and consistency of the role India has been playing in the pre-colonial era and in the post-independent phase in promoting rule of law in international relations.
World Trade Organisation: With regards to the trade in services, it is clear that services are subject to a number of non-tariff barriers, which mostly remain invisible. This, most of the time, makes it difficult to quantify the exchange of concessions. There is a need to have total transparency, along with a legally binding international code on restrictive business practices. It is pertinent that developing countries should have a proper legislative framework on restrictive practices. India has already adopted the Competition Act, 2002 (partly in force), which, though not service specific legislation, will address the anti-competitive practices of the enterprises.
Module 2: Sources of International Law Topics for study;
**_1. Statute of International Court of Justice ,1945( Article 38)
As pointed out by Starke, 'The material sources of international law may be defined as the actual materials from which an international lawyer determines the rule applicable to a given situation." The term 'source' refers to methods or procedure by which International law is created. A distinction is made between the formal sources and material sources of law. As pointed out by G. Fitzmaurice they may also be described as, respectively, as direct and indirect, as proximate or immediate and remote or ultimate. Material sources may also be described the "origins" of law while the material, historical or indirect sources represent the stuff out of which the law is made, that is to say, they go to form the content of the law, the formal, legal and direct sources consist of the acts or facts whereby this content is clothed with legal validity and obligatory force. The essence
