International Law And Its Instrumentality

Introduction

Although the rules of international law and its instrumentality have developed systematically only in the last 5 centuries, some of them have roots in antiquity. The mutual relation of state during the ancient period was governed by certain rule based on the law of nature. Jews, Greek, Romans and Hindus had practiced rules regarding war and peace of Greeks who civilization was quite advanced, set an example to the future that independent states can live in a community in which their international relation are governed by certain rules and customs of the member of that community.[1]

Origin of International Law

The modern study of international law starts in the early 19th century, but its origin go back at least to the 16th century and Alberico Gentili, Francisco de Vitoria and Hugo Grotius, The “Father of International Law.”

Definition Of International law

A definition of international law is given by different eminent person. But I stated only one of them which are as follows:

Hall and Lawrence: Which says that international law is the is followed and enforced and just like positive law it is Deprived from custom and precedent.

Nature of international law

  1. Status of international law and its instrumentality is very controversial aiming jurist.
  2. The disagreement if based at the core in definition of law itself.
  3. In present scenario
  4. There are international legislation created now-a-days as treaties and convention.
  5. These legislation have binding force behind them.
  6. State consider themselves bound by legislation.
  7. The international community and united nation can act against violation of this legislation.

Why international law is weak law?

International law is a weak law because from my observation;

  1. Not as effective and efficient municipal law
  2. International law is binding only of the state agrees to its first.
  3. Absence of real law power of the courts at international level to enforce its decision.

Basis of International law

There is 5 basis of international law which are as follows:

1. Naturalist theory– Which says that there might be some reason why the law. (For example – morality, universal principle, religious etc.)

2. Positivism theory– says that positive law is made by humans. According to Jeremy Bentham he says that international law is an agreement between sovereigns and can be distinguish into two categories i.e. Public and private.

3. Auto limitation theory- voluntary restriction or auto limitation of sovereignty of states by giving their assent to international law.

4. Fundamental theory– every man is entitled to basic right i.e. right to life, dignity etc.

Law of Treaties in international law; Treaties is a formal written agreement between actors of international law. Treaties are also known as covenant, convention etc.

  • The codified law on treaties is (VCLT), in preamble which consist of 8 parts and 85 articles. It shall came into force on 27 January, 1980.
  • Non sovereign state can also conclude treaties, colony, trust territory can also be a part of treaty.

Treaties can be categorized into two categories.

  1. Statue treaties
  2. Treaty contracts

5. Pacta Sunt Servanda: which means that states are bound to fulfill in good faith the obligation assumed by them under treaties.

Article 27 of VCLT strengthens the rule by saying that “No party to a treaty might attempt to justify any of its international treaty obligations by invocation of its internal law.

Exception of Pacta Sunt Servanda:

  1. When a new state comes into existence as a result of revolt.
  2. Treaty obligation which are related to property ceded or merged.

How International treaties is formed?

  1. Appointment of representation by contracting state
  2. Negotiation and adoption
  3. Signature
  4. Ratification
  5. Accession or adhesion
  6. Entry into force
  7. Registration or publication.

Pacta Tertis Nec Nocent nec prosunt; which means that treaties neither obligate nor benefit third party.

A treaty binds the parties and only the parties it does not create obligation for a third state.

Exceptions

  1. The third party accepts the obligation (via a collateral agreement) in writing (Article 35)
  2. Rights for third stage can be created (article 36)
  3. International customs created by treaty binding upon third states.( article 38)

Sources of international law

The important sources of international law which are as follows;

  1. International convention
  2. International custom
  3. General principle of law recognized by civilized nation
  4. Judicial decision and juristic work
  5. Equity and conscience and justice.

International Customs: which means as evidence of a general practice accepted as law. Two condition which are as follows:

  1. There should b sufficiently uniform state practice.
  2. There should be a belief that such practice is obligatory.( opinion juris).

Settlement of international dispute: which means disagreement on a point of law or fact, a conflict of legal views or of interest between states. Article 2 (3) of union charter says that members have to settle dispute by peaceful means.

Methods of International law:  The method of international law and its instrumentality are as follows:

  1. Pacific means which is defined in chapter 6 of united nation charter which defined negotiation, good offices, arbitration, judicial settlement, conciliation or other peaceful means.
  2. Compulsive means which is defined in chapter 7 of united nation charter which defined complaints, retorsion, hostile embargo, war etc..

Asylum in International law: it is originated from asylum which means inviolable place giving protection own country prosecution.

Case law

S.S Lotus case( France vs Turkey)[2] in this case it was held that S.S lotus collided with a Turkish vessel in high seas, 8 Turkish nationals drowned when the Turkish national drowned when the Turkish ship was hit by lotus.

Conclusion

Article 2 (3) of union charter says that members have to settle dispute by peaceful means. There is international legislation created now-a-days as treaties and convention. These legislation have binding force behind them. State consider themselves bound by legislation. The international community and united nation can act against violation of this legislation. Not as effective and efficient municipal law.

International law is binding only of the state agrees to its first. Absence of real law power of the courts at international level to enforce its decision.

[1] Oppenheim,’ international law’, vol.1, eight edition, page.75

[2] 1927

This Article Written by Harshil Munjal, Student of JECRC University.

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