Tuesday, 31 May 2022

Nature of International Law

 Nature of International Law

By: Anjali Tiwari

Previously, international law was entirely based on municipal law, which was regarded as natural law for the same reason. The question of whether international law is true law or not arose with the arrival of the nineteenth century, i.e., due to positivists, and the solution to this question varies depending on the definition of law offered by various jurists. As a result, there are two opposing viewpoints on this issue. International law, according to positivists, does not exist and is simply a set of positive morality standards. They claim that international law cannot exist because there is no worldwide legislature to create it, no international administration to enforce it, and no efficient international court to develop it or resolve disputes over it. They claim that because there is no higher authority to enforce the law, the states have little regard for it and so have no incentive to obey it, only obeying it when it benefits them personally.

Modern jurists, on the other hand, hold that international law is as much a legal system as any other municipal legal system, and that it is not a set of positive morality principles. Worldwide communities and persons who perform international business in various roles regard international law as very important. Even a State that wishes to circumvent an inconvenient rule of international law would not deny the existence of international law as a whole, but would justify its action by either contesting the rule's existence, invoking another rule that applies to its situation, or claiming that the rule should be modified to fit a new situation.

Natural Law, or divine law, was the foundation of earlier theorists' theories on international law. Following that, two schools of thought emerged: the Naturalist School, as illustrated by Samuel Pufendorf, who believed that International Law was based on the Law of Nature, and the Positivist School, who believed that International Law was distinct from Natural Law and mostly derived from the same method as the Renaissance, namely the empirical method. The nineteenth century was a period of practical positivism. The Industrial Revolution mechanized Europe, established the capital-labor economic divide, and advanced western dominance over the world. Also, the wave of democracy had a significant political impact, and everybody had a say in the matter; war became everyone's responsibility, and massive national armies were replaced by tiny professional forces. As a result of these numerous reasons, a variety of public and private international organizations arose, resulting in the formation of international law to bind them.

Previously, the term "Law of Nations" was used instead of "International Law." In 1780, Jeremy Bentham coined the term "international law." Oppenheim, Brierly, Torsten Gill, Hackworth, Fenwick, and Schwarzenberger all gave distinct definitions of international law; since international law has been defined by focusing on diverse factors time and time again, there can be no single generally acceptable definition. The following are some of the definitions: 

International law, according to Oppenheim, is the designation for the corpus of customary and conventional laws that are considered legally enforceable by civilized nations. Briefly defined it as "the corpus of laws and principles of action that bind civilized governments in their mutual relations, whether they are at odds or at peace."

International law, according to Hackworth, is a set of norms that governs state-to-state relations. It is a legal system that has grown, for the most part, from the experiences and requirements of circumstances that have arisen from time to time.

It is defined by Fenwick as a set of broad principles and particular regulations that bind members of the international community in their interactions.

There are many other definitions that reflect the law's enormous extent, and a distinct definition would tend to limit the subject's scope. In its purest form, international law can be defined as the sum of the rules accepted by nation states to determine their code of conduct toward each other and their subjects; in its broadest sense, this law governs people all over the world, regardless of political and geographical constraints, color, creed, or religion. States are treated as entities in international law, regardless of their size or power. It lays out rules and regulations for nation states to follow, and it expects them to do so. Because the scope and form of international law is evolving, these norms now apply to international institutions, non-state enterprises, and individuals as well


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