There have been many attempts at codifying the laws governing international activities. An international law essentially governs international activities, or activities that have international implications, between two sovereign nations or entities by common rules, standards and conditions.
The concept of legally binding agreements with an international scope was first introduced by Jeremy Bentham in the last quarter of the 18th Century (ILC, 2009). Jeremy Bentham was an English philosopher who first coined the idea of an international law that would regulate all important activities or aspects of international activities like commerce, justice, high sea activity, illegal acts, sovereignty, self defense and crime (Britannica, 2009). International law is inherently different from other laws as it primarily addresses the concerns of nations and not private citizens. It can legally be categorized into three different legal disciplines:
1. Public international law deals with common law issues between sovereign states and international organizations. Legal areas that are covered under the ambit of Public international law include international crime, high sea issues and humanitarian laws.
2. Private international law also called as conflict of laws, addresses the issue of ‘private relations’ across national borders and decides on the jurisdiction of the law. It has its roots in all the conventions, model laws, sovereign laws, legal guides, and all other documents and related instruments that govern such international relationships (ASIL, 2009).
3. Supranational law also called the law of supranational organizations, governs regional agreements between two international entities and distinguishingly nullifies laws of the respective nations in a situation of conflict with their sovereign laws.
Public International Law
Public international law relates to the form and ‘conduct’ of individual states and various organizations across the globe. Over a period of time, there has been an increased international activity and globalization has further enabled internationalization of issues. These issues, whether, economic, geo-political, environmental, criminal or else, find their right place under the ambit of Public international law.
Public international law mainly has two branches that that deal with international issues. ‘jus gentium’ or ‘Law of nations’ was initially used by the Roman empire when they dealt with foreigners. Law of nations is a common law among nations that deals with issues like peace and war, extraditions, national boundaries and international diplomatic exchanges (Wiki, 2009). The other branch of Public international law, known as ‘Jus inter gentes’, also finds its roots in the Roman law system. This branch mainly deals with international treaties, conventions and other agreements between sovereign nations and international organizations.
Public international law is also used to address sovereignty issues of nations, their boundary issues and jurisdictions. They also identify the legal responsibilities of a state, their jurisdiction of a territory and other territorial issues. This may lead to a situation of conflict between the international law itself and the sovereign state.
Private International Law
Private international law as described earlier addresses the issues between two private international entities. This branch of law regulates all the lawsuits that involve an element ‘foreign’ in nature and ones that may result in different interpretations and judgments depending on the jurisdiction of the subject (Collier, 2001). Private international law, in a situation of conflict between two international entities, determines if the proposed forum has any jurisdiction at all over the conflict situation. It then analyses and decides on the ability of competing state laws in dealing with the dispute. This branch of international law is also responsible for enforcement of the law.
The term ‘conflict of Laws’ generally refers to the disparities between laws and reflects this disparity irrespective of the fact whether the legal system is international or inter-state. The term ‘conflict of laws’ is used by countries with common law system whereas the term Private international law is used more appropriately in cases where civil law countries are involved. The term that was initially used by and American lawyer and Judge Joseph Story for a common gamut of international laws, was discarded later by the common law researchers but was adopted by civil law lawyers (Collier, 2009).
Since Private international law deals with international territorial disputes and also decides on legal jurisdictions of nation states, it is generally not easy to enforce decisions. There are two different lines of legal thinking that that try to define this law. One called ‘universalism’ is a stream of thinking where the researchers believe that this branch of law is a part of international law and applies in uniformity and is legally binding to all the nation states. The other group of researchers claims it to be ‘particularism’, according to which each state has its own unique norms of private international laws and pursues them in line with its policies.
There are two major areas of functioning for Private international law. ‘Sensu stricto’ or narrow sense comprises of these set of rules and guidelines that actually determine the applicability of law of a nation in relation to the dispute. ‘Sensu lato’, also called as broader sense, comprises of a set of legal guidelines that has a direct bearing on material norms crossing the borders of a state (Collier, 2009). This branch of Private international law normally deals with global issues like international insurance, realty and financial disputes.
It was in 1834 that Joseph Story’s treatise on the conflict of laws introduced the contemporary field of conflicts to the system of international law. His work had a great influence on the further legal research done on English laws and thus became the heart of Private international laws for most of the commonwealth countries.
Sources of International law
International law has evolved over a period of time and has its roots in the Middle Eastern and European history. It was Muhammad al-shaybani who first introduced the Law of the Nations at the end of the 8th century. These were the early legal treaties that explored applications of Islamic ethical code of conduct, and Islamic economic and military jurisprudence in relation to international law. Even though these treaties were in their nascent stage as per today’s complexity of issues, they still covered a number of areas under the ambit of international law, including treaties involving diplomats and diplomatic issues, issues of war, hostages and prisoners of war, and also women, children and civilian protection issues, especially during conflicts (wiki, 2009).
The first ever treaties discovered in European history were written by a philosopher, theologist and jurist, Francisco de Vitoria, a staunch Roman Catholic, in late 16th century. Most of these legal opinions by the researchers were greatly influenced by the Islamic International laws that were the only legal International law treaties that took shape in the previous few centuries. Another legal scholar Hugo Grotius in the early 17th century further researched on the international treaties governing international laws and was credited for his legal endeavors (Wiki, 2009).
The concept of sovereignty further evolved from the 17th century to the early 20th century in Europe. It was in Munster, in 1648, Germany that the first such instance of any treaty governing the concept of international law called ‘Peace of Westphalia’ took shape. This is when nationalism took precedence and people started identifying themselves with a certain nation-state. It was in the United States that history saw for the first time a modern instrument of international law take shape. Lieber Code was passed in 1863 by the Congress of the United States to govern actions of US forces involved with the civil war (Wiki, 2009). This was the first ever written law detailing guidelines and rules of war that were adhered to by all the civilized nations.
The sources of International law are various resource materials and the processes that have shaped it over a period of time. Most of these processes or the building blocks of rules were greatly influenced by the politics in general and the legal theories by the researchers or philosophers. The decisions taken by the judges and the writings by the jurists are considered the auxiliary sources for the development of the international law. The international treaties between nation states and organizations, and the customs are also considered international laws of equivalent legitimacy (Wiki, 2009). As per the International Court of Justice, Customs are considered a primary source for International law, along with general principles of law and various treaties.
International law and Customs
Customary law is already acknowledged by the International Court of Justice by a statute in Article 38(1) (b), and is also incorporated in United Nations charter by Article 92 (Villiger, 1985). Customary laws are applied by international agencies in addressing the issues related to international disputes where the application of customs is considered an equivalent to the general practice accepted a part of International law applicable to the dispute. As a thumb rule, as and when a practice becomes a custom, it is applicable to all the member states of the international community. These states are bound by these customary principles whether or not they have consented for it, unless they opposed it from the start.
Customs have long been a primary source for International law. Even though codification of customary laws took place in 1899 and 1907 in the Hague and Geneva conventions, some customs that were codified, like the ‘laws of the war’, had long been the part of international customs. The new codification of customary civil laws developed over a period of time since the middle ages. The customary expressions of law that were repetitive and were widely accepted within a particular community were written into laws by the local jurists. An example of such law would be ‘custom of Paris’ that regulated the community within Parisian region (Villiger, 1985).
The term ‘customary law as a part of International law, also refers to the legal norms that were developed over a period of time and with customary exchanges between two independent states either through diplomacy or with wars. Though customary laws are not considered as superior as other laws written by statute or treaties in the International law system and are loosing their influence, they still are considered and recognized as building blocks for the ever evolving international laws and given great thought in most of the scholarly works by jurists. We may find examples of strong customary laws across the globe, like the Canadian aboriginal law, that have a constitutional backing and thus have an increasing influence over deciding factors (Villager, 1985).