INTERNATIONAL LAW DEVELOPMENT
Every society makes a legal framework under which it functions and
develops. The world today requires a framework through at the global level
so, 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.
Oppenheim’s definition
“Law of Nations or international law is the name for the body of customary
and conventional rules which are considered legally binding by civilized
States in their intercourse with each other”.
The above definition given by Oppenheim which has become inadequate. The
definition has been subject to the following criticism:
(i) Only considered states: The definition takes into account the relations
of ‘States’ only. But, presently, international organisations and
institutions are also regarded as subjects of international law.
(ii) Excluded Individuals: International Law also provides certain rights
and duties to individuals. UN confirmed that the individuals have
become not only the subjects of international law but can also
directly claim rights and remedies provided under international law.
(iii) Civilized States: The use of the term ‘civilized States’ by Oppenheim
is also severely criticized which was deleted later.
(iv) Body of Rules: The expression ‘body of rules’ denotes that
international law is static or fixed. However, international law is a
dynamic concept.
DEVELOPMENT OF INTERNATIONAL LAW
International Law and International Organizations have varied from
time to time. Earlier there was no universal law binding on all the
nation states but now there is. The enactment of International Law
was always essential and will be essential in the time as it provides
amendments according to the world scenario. International Law has
always acted in the promotion of peace and security as with the
establishment of International Court of Justice, various nations’
disputes have been resolved, if there would have been no
International Law then the scenario would be such that the nation
states would be waging war even for petty disputes. International
Law has always been and will be one of the most essential laws,
without which the world could even come to an end. For instance,
earlier nobody would have imagined that restricting the use of
nuclear plants would be important but now, if it is not forbidden then
nation states would not think twice to have a nuclear war.
Is International Law really a law?
It is one of the most controversial questions that has been debated and
on which jurist’s opinions hugely differ.
Austin’s View – International law is not a true law
John Austin, the father of the Analytical school and according to him, Law =
command + sanction + sovereign i.e. every law must have three
elements i.e. command, sanction, and sovereign authority.
A ‘command’ is a declaration of an individual’s or group’s wish that another
person does or refrain from doing as it would result in evil i.e. ‘sanction.’ As a
result, every law is a command that imposes a responsibility and is enforced
by punishment. Based on that, if we apply this theory to International law, we
will see that International laws are merely based on ethics and morality and
are not true law.
Oppenheim’s View – International law
According to him, laws are nothing but a body of rules for human conduct,
which can be enforced by an external power if there’s a common consent of
the community for the same.
Based on what he said, we can conclude that, firstly, there must be a
community, secondly, a body of rule of conduct governing the community
must be there and thirdly, common consent among the community for the rules
to be enforced power must be present. So it is not necessary that rules should
be enacted by a legislative authority for them to be legally binding.
International Law is the Vanishing Point of Jurisprudence
The phrase "International Law is the Vanishing Point of Jurisprudence" which
implies that when we explore the complexities of international law, we reach
the outermost limit of legal theory. In his view, Holland says that International
Law is the vanishing point of Jurisprudence because there is no judge to decide
international disputes. He believes that the rules of International Law are
followed by States by courtesy.
Counterview:
It is now widely accepted that International Law is indeed a form of law. The
verdicts issued by the International Court of Justice carry legal weight and must
be followed by nations. If a state fails to uphold the judgment issued by the
International Court of Justice, it is within the purview of the Security Council to
provide its recommendation. The phrase "International Law is the vanishing
point of Jurisprudence" has faced criticism. The statement also disregards the
critical role played by legal systems and their influence on individuals' daily
lives.
