While the world is currently experiencing the Russia-Ukraine war, people are questioning the authority of international laws. Ukraine v. Russia has once again challenged the authenticity of International law. There are questions around Russian violation of international law. Here, the types of international law have been explained to ensure better understanding of what is applicable in the Russia-Ukraine conflict, how the International Court of Justice works and what are the other aspects of international law.
As the term itself suggests, it is the law that applies internationally, i.e. beyond the borders of a country. It concerns the relations amongst nations, individuals of different states and the international organisations. Oppenheim defines law of nations or international laws as the body of customary or conventional rules considered legally binding by civilised states during intercourse with each other. According to Jeremy Bentham who first coined the term, international law is the collection of rules governing relations among states.[1] Talking about the birthing of the law of nations, it started with De jure belli ac pacis (concerning the law of war and peace]) by Grotius. That is why the answer to ‘Who is called the father of international law?’ is Hugo Grotius. He is well known for his contribution in the field of jurisprudence around sovereign, international trade law and contemporary humanist traditions in case of war[2].
When asked how many types of international law exist, the broader answer includes two. The law of nations is also known as public international law which deals with principles concerning conduct of states, international organisations and private individuals. The other one is private international law commonly known as the conflict of laws. It regulates the private legal affairs conflicting the municipal laws of countries.
The conduct of states and international organisations among themselves, the relationships between states and international organisations with individuals is governed by certain rules and principles which are termed as public international law.[3] Here, it should be noted that the application of public international law depends upon whether the state (country) in question has agreed to be a subject of that particular law or not. The roots of public international law can be traced in customs, one among sources of international law, till the present day conventions, treaties, etc. It also promotes the legal maxim pacta sunt servanda means agreements must be respected.
Let us try to understand the concept in Indian history with the help of Ramcharitmanas. Sovereignty could be understood through borders and thereby applicable laws. When he visited the Ashoka Vatika and destroyed the garden, lord Hanuman was supposed to be killed by Ravana. But Vibhishana suggested leaving him respecting the fact that he was an ambassador (doot) of lord Rama. He also explained that killing Hanuman would be against the policy, which is the application of international laws.
Public international law as one of the types of international law promotes protection of human rights, humanitarian grounds during war, protection of environment, international trade laws, diplomatic relations, regulation of natural resources, etc.
Private legal disputes that have a foreign element fall under private international law. Private international law is also called the conflict of laws. Concepts under the domestic civil law, for example marriage and divorce, commercial contracts, etc. having one of the parties or place of action in another country, the same is governed by the private international law. Jurisdiction or applicable law are in question in such cases. Here, legal maxims like lex fori (choice of law against the court in which proceeding is brought), lex loci (law of country of transaction), lex causae (law of the cause governing particular question), etc. play are the base for deciding matters depending the facts of case.
Paton was the first one to declare International law as a weak law due to lack of legislative support. Even if the International Court of Justice is there, hearing a case by ICJ depends upon the consent of states and is crippled when it's time for implementation of decisions.[4] Austin rejects the international law claims for the very lack of an international sovereign. The sanctions against international law violations are only moral which can be seen at present through sanctions on Russia.[5] Implementing international law again falls upon the sovereign states only and their wish.
Although it is a matter of state consent, there are certain examples where international law laid the roadmap for municipal law. One such example is Vishaka guidelines[6] whereby Justice J.S. Verma held that any international convention consistent with fundamental rights and their spirit must be read to enlarge the meaning and context in order to promote the constitutional objective.
If you have a matter that has an international element under either type of international law, contact International lawyers in India and get it resolved.
International law has been there since ages, particularly the public international law. The applicability of types of international law varies based on the facts of the matter and subjects of international law. At present when COVID-19 has managed to close the borders under the shadow of lockdown and the Ukraine-Russia crisis which brought the wartime laws into limelight, understanding the international laws is important for everyone. Whether they have any significance over the sovereign powers is still a matter of question.
Q- Who is known as the father of international law?
A- The famous Dutch scholar and jurist, Hugo Grotius is known as the father of International laws.
Q- How many types of international law exist?
A- Broadly speaking, there are two types of international law, the public and private international laws.
Q- What is the difference between lex causae and lex fori?
A- As per private international law practice, lex causae means the law chosen by the court deciding a matter where there is an international element. It may be municipal or domestic law or the foreign law as deemed fit. Lex fori is the choice of application of laws rooted in a jurisdiction whereby the legal action is brought.
Q- Is international law a type of law?
A- The opinion varies under the various schools of law, specifically negative among the followers of Austin who seek sovereignty for legislating a law. Otherwise, international law is a law which goes beyond the borders of a country for its legislation as well as application.
[1] Janis, M. W. “Jeremy Bentham and the Fashioning of ‘International Law.’” The American Journal of International Law 78, no. 2 (1984): 405–18. http://www.jstor.org/stable/2202284.
[2] Hugo Grotius, INTERNATIONAL ENCYCLOPAEDIA OF PHILOSOPHY, https://iep.utm.edu/grotius/.
[3] Public International Law, THE UNIVERSITY OF MELBOURNE, (2022, Mar 8 at 3:02 PM), https://unimelb.libguides.com/internationallaw.
[4] http://law.uok.edu.in/Files/5ce6c765-c013-446c-b6ac-b9de496f8751/Custom/UNIT_I.pdf.
[5] Janis, M. W. “Jeremy Bentham and the Fashioning of ‘International Law.’” The American Journal of International Law 78, no. 2 (1984): 405–18. http://www.jstor.org/stable/2202284.
[6] Vishaka and Others v. State of Rajasthan, AIR 1997 SC 3011.