Nature and Characteristics of International Law

 

To understand the nature and characteristics of international law we should remember following points:

Evolved through the consent of the states: 

International law is the result of concurrence will of the states and the gradual process of customary practices among the states. Almost all the states are binding by agreement, ratification, accession and approval to the international law.

No uniformity on approaches:

For a long time, there was a controversy about whether international law is really a law or it is a branch of ethics or it is a weak law or even a vanishing point of jurisprudence. John Austin deny that the title law should not be used for international law because there is no authority to issue law, not backed by sanctions and no court to interpret it. Holland argues that it is a vanishing point of jurisprudence because its rules are uncertain and vague, no authority to enforce and interpret and UN charter article 2 (7) states that a state cannot be interfered generally. Some other scholars deny these views and accept it as a law but weaker than state law. This last view is regarded true in the present context.

Combination of treaties and customs:

Treaty of Westphalia (1648), American Declaration of Independence (1776), French Declaration of the Rights of Man and the Citizen (1789), Vienna Act (1815), Paris Declaration (1856), Geneva Convention (1864), Petersburg Declaration (1868), Hague Convention (1899 & 1907), Treaty of Versailles (1919), Covenant of the League of Nations (1919), Locarno Treaty (1925), Paris Pact (1928), Geneva Convention (1929), UN Charter (1945) etc.

Based on five core principles:

Sovereign equality, Non-interference, Territorial inviolability, Mutual benefit & Pacta Sunt Servanda (Treaties must be observed in good faith).

Contributions of various scholars:

Naturalists- Francisco de Victoria (Roman,1483-1556), Francisco Suarez (Spain,1548-1617), Gentilli (Italy,1552-1608), Hugo Grotius (Dutch,1583-1645), Zouche (Eng,1590-1661), Samuel Pufendorf (German,1632-1694).

Positivists- Bynkershoek (Dutch,1673-1743), Vattel (Swiss,1714-67), Jeremy Bentham (Eng,1748-1832), John Austin (Eng,1790-1859) etc.

Main purpose is to regulate international relations:

For making strong inter-state relations, to control activities against human rights, to maintain peaceful environment, to establish equality and equity in human community, to eradicate all types of discriminations existing in human society.

Paradigm shift after the end of bipolar system:

After the end of cold war between socialist and capitalist block, international law got easy environment to facilitate the process of globalization on economy, democratization, good governance, refugee settlement, human rights, privatization, inclusiveness in power, liberalization, co-operation etc.

Weaker than municipal law:

In international law, rules are uncertain and vague, no authority to issue, enforce and interpret the law, no decentralization of legal function, affected by powers, sovereignty of states, no backed by effective sanctions.\

More dynamic by science and technology:

With the rapid development of science and technology the globe has changed into a small village but scope and subject matters of international law have been vastly increased. In this context, international law has to cope new challenges related to the possibility of warfare, overflow of immigration, refugee crisis, rights of marginalized communities, world trade, property right and so on. Therefore it has more dynamic with the pace of time and challenges.

Universal justice is the aim of international law:

To meet the aim, it regulates human activities in three ways- prohibitory, mandatory and permissive. Its violation leads to punishment. No state can do activities such as- against peace and Nuremburg principles, activities for genocide and racial discriminations, deeds against human rights etc. All states must observe prohibitory, mandatory and permissive actions properly.