kinds/ Basis And weaknesses of International Law LLB Notes

 kinds/ Basis And weaknesses of International Law

Meaning:

 Law applicable between States known as Law of Nations previously. 

The phrase ‘International Law’ or ‘Law of Nations’ has been coined by Jeremy
Bentham.

Definitions:

Classical Definitions: 

L. Oppenheim:

 “Law of Nations or International Law is the name for the body of customary and treaty rules which are considered legally binding by civilized states in their intercourse with each other.”

J.L. Brierly: 

“The Law of Nations or International Law may be defined as the body of rules and principles of actions which are binding upon civilized States in their relations with one another.

Gray:

 “International Law or the Law of Nations I s the name of a body of rules   which according to the usual definitions regulate the conduct of the States in their intercourse with one another.”

Kelsen: 

“International Law or the Law of Nations is the name of a body of rules  which according to the usual definition  regulate the conduct of the States in their intercourse with one another”.

Criticism on Classical Definitions: 

As to Subjects: 

Not only states but also IGOs, NGOs, MNCO’s, Individuals etc.  are the subjects of International Law. 

As to Sources: 

Not only customs and conventions but also other sources, like ‘General Principles of Law recognized by Civilized States’, Juristic writings etc.
(See Art. 38 of the Court of International Court of Justice)

Modern Definitions: 

Whiteman:

 “International Law is the standard of conduct, at a given time, for states and other entities subject thereto.”

J.G. Starke: 

Most comprehensive definition: “International Law may be defined as that body of law which is composed for its greater part of the principles and rules of conduct which States feel themselves bound to observe, and, therefore, do commonly observe in their relations with each other, and includes also—

(a). the rules of law relating to the functioning of international institutions or organizations, their relations with each other, and their relations with States and  individuals; and

(b). certain rules of law relating to individuals and non-State entities so far as the
rights or duties of such individuals are the concern of the international
community.”

II. KINDS OF INTERNATIONAL LAW

International Law may be divided into following kinds:

Public International Law:

 Public International Law is commonly known as International Law. Its definitions have been given above. Therefore, it is “a law  consisting on rules and principles, which govern the relations of States inter se, the relations of other entities among themselves and their relations with states.”

Private International Law:

 Private International Law is the law consisting on  rules and principles determining the questions as to jurisdiction of the court and  selection of appropriate law to be applicable, in cases involving a foreign element.  It is also known as ‘Conflict of Laws’, It is applicable in situations when a case in a domestic court involve a foreign element, and the first question arises that whether the Court has
Jurisdiction? After deciding the first question in affirmative then the next  question would be that on the basis of which country’s law the case is to be  decided?

For example;

 A, an English citizen, marries B, an Egyptian citizen, in America in 2011. They are living Pakistan for the time being and there arose  certain misunderstanding between them which B to sue for divorce in a family court of Pakistan. In this case, before the family court could decide the case, it has to determine the following questions:

1. Whether the Family Court of Pakistan has jurisdiction in the present
Case? and,

2. If yes, then the law of which country (England, Egypt, America or
Pakistan) shall be applicable?

The law which is giving answers to these questions is known as Private
International Law.
This law, is in fact, the part of the domestic law itself. In other words, every  state has its own set of rules to determine the above two questions. Therefore, it can be said that Private International Law is changing from State to State.
Moreover, it is the law applicable between the nationals of two or more than  States. its major part  is civil in nature.

Distinction between Private and Public International Law:

• Public International Law  Mostly deals with States 
• Private international Law Mostly deals with Individuals

•  sources of Public International Law are treaties, customs etc. 
•  sources  of Private international Law is domestic law.

•  Public International Law is same for all States who agreed to it.
•  Private international Law is Different for different States

• Public International Law is Both civil and criminal in nature 
• Private international Law is civil in nature. 

BASIS OF INTERNATIONAL LAW

Two theories explaining the foundation of International Law:

Naturalism: 

This school consider international law as derived from natural reason

Positivism: 

This school believe in the consent of the states for creation of international law rules.

BASIC PRINCIPLES

Natural Theory 

Law is  principles of universal and eternal application
Positive Theory
Law is decreed by States.


Natural Theory
Law is not made but discovered.
Positive Theory
States create international law by express or tacit consent so the will of State is Supreme

Natural Theory
International Law Binds both the state and individuals .
Positive Theory
International Law  binds only states.

Natural Theory
International Law is Binding on States independent of their consent.
Positive Theory
State bound by those rules to which it has clearly consented.

 WEAKNESSES OF INTERNATIONAL LAW

Weaknesses are apparent when we compare it with municipal law.  The main weaknesses in so comparing would be as under:

• It is lacking an effective legislative machinery. Some jurists argue that the institution of treaty is the legislative machinery in International, but as a matter of fact, treaties are agreement and could not be regarded as legislation.

• It is also lacking an efficient executive authority responsible for its enforcement.

• It also lacks an efficient judiciary to interpret it. Though International Court  of Justice is existing, however, as it is not having compulsory jurisdiction, therefore, it could not called as a satisfactory judicial authority.

• The sanction in domestic law is more coherent and structured, whereas, the sanction in international law is very loosely structured, therefore, its frequent violation is logical.