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NATURE, ORIGINS, AND BASIS OF INTERNATIONAL LAW

 

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 bound to observe, and therefore, do commonly observe in their relations with each other,  and which 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 and non-State entities are the concern of the international community. This definition goes beyond the traditional definition of international law as a system composed solely of rules governing the relations between States only.

Such traditional definition of the subject, with its restriction to the conduct of States inter se, will be found set out in the majority of the older standard works of international law, but in view of developments during the last three decades, it cannot stand as a comprehensive description of all the rules now acknowledged to form part of the subject.

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These developments are principally: —(i) the establishment of a large number of permanent international institutions or organizations such as, for example the United Nations and the World Health Organisation, regarded as possessing international legal personalty, and entering into relations with each other and with States; and

(ii) the present movement (sponsored by the United Nations and the Council of Europe) to protect human rights and fundamental freedoms of individuals,^ the creation of new rules for the punishment of persons committing the international crime of genocide or race destruction,^ and the imposition of duties on individuals under the historic judgment in 1946 of the International Military Tribunal of Nuremberg, by which certain acts were declared to be international crimes, namely, crimes against peace, crimes against humanity, and conspiracy to commit these crimes.(International Law Books PDF for CSS)

Both categories of developments have given rise to new rules of international law and may be expected to influence the growth of new rules in the future. The definition given above is intended to cover such new rules under heads (ay and (b).

Nevertheless, from the practical point of view, it is well to remember that international law is primarily a system regulating the rights and duties of States inter se. So much is hinted at in the very title ” international law “, or in another title frequently given to the subject—”

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the law of nations “, although strictly speaking the word ” nation ” is only in a crude way principles implicit in the judgment of the International Military Tribunal were formulated by the International Law Commission of the United Nations as a Draft Code of Offences Against the Peace and Security of Mankind in a Report presented in 1950; note Principle I, formulated in this Report: —” Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.”(International Law Books PDF for CSS)

* There is a division of opinion among writers whether international law includes the ” internal ” law of international institutions, such as the rules governing the rights and duties of officials of these institutions. For the view that the expression ” international law ” in Article 38 of the Statute of the International Court of Justice does not cover this ” internal ” law, see per Judge C6rdova I.C.J. Reports, 1956, at pp. 165-166.

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International Law Books PDF for CSS

synonym for the word ” State “.^ Indeed, it is a very good practical working rule to regard international law as mainly Composed of principles whereby certain rights belong to, or certain duties are imposed upon States. Nevertheless, although the principal component of the system is represented by binding rules,

imposing duties and conferring rights upon States, international lawyers have now increasingly to concern themselves with desiderata, guidelines, and recommended standards expressed in a non-binding form (e.g., as in the Declarations adopted by the United Nations General Assembly, the Recommendations of the International Labour Conference, and the Recommendations of the periodica]

Consultative Meetings held under the Antarctic Treaty of 1959), but which many States concerned feel constrained to observe. These may indeed eventually evolve into binding legal rules, e.g., by general acceptance or approval (cf. Article IX, paragraph 4 of the Treaty on Antarctica of 1959, under which recommended measures may become ” effective
” upon approval by the parties concerned). (International Law Books PDF for CSS)

The main object of international law has been to produce an ordered rather than a just system of international relations, yet in later developments (for example, in the rules as to State responsibility concerning the denial of justice,

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and in the rules and practice as international arbitration) there has been evidence of some striving to ensure that, objectively, justice be done between States. Moreover, apart from seeing that States receive just treatment, the modem law of nations aims at securing justice for human beings.(International Law Books PDF for CSS)

It is significant further that the word ” Justice ” appears in the titles respectively of the Permanent Court of International Justice and its successor the International Court of Justice, both being judicial tribunals set up to decide disputes between States and to give advisory opinions according to international law.(International Law Books PDF for CSS)

That justice is a primary purpose of the law of nations emphasizes its kinship to State law.  There is a recognized distinction between general and regional rules of international law, that is to say between, on the one hand, rules which, practically speaking, are of universal application,2and, on the other hand,

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rules which have developed in a particular region of the world as between the States there located, without becoming rules of a universal character. The best illustration of such regional rules are those which have been commonly followed by the group of Latin American States, for example, the special rules relating to diplomatic asylum. This so-called ” Latin American international law ” and the nature of regional rules were discussed by the International Court of

{a) regional rules are not necessarily subordinate to general rules of international law, but maybe in a sense “complementary” or “correlated” thereto, and {b) an international tribunal must, as between States in the particular region concerned,

give effect to such regional rules as are duly proved to the satisfaction of the tribunal. In this connection, there may perhaps be noted also the modern tendency towards regionalism in an international organization, reflected in the fusion of States into regional ” functional.

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