EVOLVING AREAS OF INTERNATIONAL LAW

INTRODUCTION

In earlier times international law was referred by the name “Law of Nations” so the term international law and law of nations are synonyms to each other. The term international law was given by prominent British jurist Jeremy Bentham in year 1780. International law is itself in conflict whether it is a public law or private law as sometimes it is called public law and sometimes private. International law is referred to as relation between national states which are legally binding in their intercourse with each other. International law deals with international trade, extradition, asylum, aliens, Protection of nations.

It was observed by the famous jurist Oppenheim

“International law is the body of rules which are legally binding on states in their intercourse with each other. These rules are primarily those which govern the relation of states but states are not the only subjects of international law. International organizations and to some extent also individuals may be subject of rights conferred and duties imposed by international law”.

International law includes customs, treaties, general principles of law recognized by civilized Nations, Judicial decisions, writing of jurists, equity, Resolutions of the general assembly as its sources. The science of modern international law gave birth to Hugo Grotius who worked on De Jure Belli ac Pacis i.e.  The law of war and peace in year 1625. He is popularly known as father of law of nations. Grotius had started its work from the law of nature his intentions was to find out those rules of nations which were unchangeable, eternal and independent from the consent of the single states. The private individuals, societies and governments made attempt to codify international law. Codification of international law does not give rise to international law as it will hamper the growth of the nations. The main functions of international law are to maintain international peace and security, settlement of disputes and arms control.

There are many factors that are working towards the improvement of international law i.e. technological, social and economic development. The modern international law states that international law is dynamic in nature as there are many factors which affect its dynamism like human rights and conventions. If we look an international law with modern perspective then we will see international law is not true law because there is no international legislature to make the law, there is no international executive to enforce the law made by the legislature and there is no international judiciary to resolve the dispute.

ROLE OF ICJ IN EVOLVING THE LAWS

The role and power of court regard to national jurisdictions are defined because of the existence of constitution like in India and USA. The primary role of court is to review and apply the law made by the legislature. International court of justice is known by the name of “World Court” exists as it has limited jurisdiction to decide the dispute. The international court of justice is a principal organ of the United Nations. It performs the functions of a judicial body on international plane. International law suffers from lots of ambiguity and defects.

Unfortunately, the exact role of the ICJ in evolving the law has still not been cleared precisely. Under this article I would like to focus on the following three questions:

1.     How can we say international law is a law in true sense as it does not have any international legislature to make law, executive to enforce it and judiciary to resolve the dispute?

2.     Why the rules of International law do not give absolute jurisdiction to the ICJ over all international disputes?

3.     Why international law has not been codified so far like national law?

I have dealt with the above questions and tried to answer them in a very concrete and precise manner which is given below:-

·       Yes, we can say international law is a law in true sense as rules of international law derives from international customs and treaties so it does not have need of international legislature, executive and judiciary. The frequency of violation of international law in comparison to national law is less because offender always tries to prove that no rules of international law apply on him.

·       The rules of international law does not give absolute jurisdiction to the ICJ over all dispute since  the court act with the consent of the states only or if an international treaty has been signed among the states that in case of arising out of any dispute matter shall lie within the jurisdiction the ICJ. ICJ cannot decide a dispute without the consent of the parties as it has to work in fair and non-arbitrary manner.

·       International law has not been codified so far reason being codification of international law would hamper the development of international law as codified laws are rigid.

 Article 38(1)(c) of the statue of international court of justice states that in the absence of international treaties and customs general principles of law recognized by civilized nations shall be apply and treated as one the main source of international law. General principles of law recognized by civilized nations inserted under article 38(3) of the statute of the permanent court of international justice.

At present international court of justice is the main international judicial tribunal as its decisions is binding only to the parties. Article 59 of the statute of the court has made it clear that “the decisions of the court have no binding force except between the parties and in respect of that particular case”.

CONCLUSION

From the above discussions I would like to simply say that ICJ does not merely interpret the law but also evolves the law. International law needs to be developed in the modern times as in order to make international law changeable and adaptable in accordance with the changing times and circumstances its power and circumstances should be expanded. No system of law can deal with all problems which are going to be arising in future. Even the Indian constitution being the largest constitution of the world has been gone through many amendments.

In Fisheries case it has been held by the court that if there were special circumstances it would be proper to apply the method of straight base-line for delimiting the territorial sea rather than following the low water mark. Before this case the customary rule was that a state has to follow low water mark to delimit territorial sea but by this case the court evolved a new rule or an exception to this low water mark rule when there are special circumstances. In theory the court only recognized a special custom but this was the first time that such a special custom was recognized.

In Reparation of injuries case it has been held by the United Nations having an international personality can bring claim against a state on behalf of its personnel who had been injured by that state as it was violation of an obligation which was due to the United Nations. the ICJ opined that charter intended to confer on the united nations, the legal personality to possess rights and duties and right to bring a claim on behalf of its personnel was one such conferred right. Therefore by way of progressive interpretation the ICJ developed an entirely new rules .Today it is regarded as well established rule of international law.

In Chorzow factory case it has been held that breach of an engagement involves obligation to make reparation in adequate form. Before this case this principle was a principle of a domestic law and it was first time when it was recognized as a principal of international law. Today this principle had gained the status of customary law under article 1 and 2 of ILC draft articles on state responsibility.

In Nicaragua case the ICJ ruled in favor of Nicaragua and against the United States and awarded reparations to Nicaragua. It was held that the USA had been involved in the “unlawful use of force”. The alleged violations included attacks on Nicaraguan facilities and naval vessels, the mining of Nicaraguan ports, the invasion of Nicaraguan air space and the training, arming, equipping, financing and supplying of forces the “contras” and seeking to overthrow Nicaragua’s Sandinista government. This was followed by the statements that the judges voted on.

Above four Cases are the most important pronouncement of the court known for their norm creating character. Nicaragua case is the last updated case of norm creating character as no latest case has come into light so far.

 REFERENCES:

1. Oppenheim’s international law, Vol. 1, Ninth edition (1992)

2. Article 59 of the ICJ statute

3. Article 38(1) (c) of the ICJ statute

4. Article 38(3) of the ICJ statute

5. Fisheries (United Kingdom v. Norway), Judgment of 18th December 1951

www.icj-cij.org/docket/index.php?p1=3&p2=3&k=a6&case=5&code=ukn&p3=4

6. Reparation for injuries suffered in the service of the United Nations, advisory opinion of 11 April 1949

www.icj-cij.org/docket/index.php?p1=3&p2=4&k=41&case=4&code=isun&p3=4

7. Chorzow factory case (July 26^th, 1927),

 www.icj-cij.org/pcij/serie_A/A_09/28_Usine_de_chorzow_competence_arret.pdf

8. www.en.wikipedia.org