BY Sudipto Bose
What is Public International Law? International Law, which in most other countries is referred to as Public International Law, concerns itself only with questions of rights between sovereign states or nations and the citizens or subjects of other nations. In contrast, Private International Law deals with controversies between private persons, natural or juridical, arising out of situations having relationship to more than one nation. In recent years the line between public and private international law has become uncertain. Issues of private international law may also implicate issues of public international law, and many matters of private international law have substantial significance for the integrity of nations.
International law imposes upon the nations certain duties with respect to individuals. However, an individual cannot bring the complaint. It is only the state of which he is a national which can complain of such a violation before an international tribunal. The state of the individual usually is not obligated to exercise this right and can decide whether or not to enforce it.
In the last five decades or so, International Law has broken traditional barriers restraining its role to merely relations between states and has broadened its ambit to include the laws related to the functioning of international institutions and organizations, their relations with each other and their relations with other states and individuals. International law also includes certain laws relating to individuals and non-state entities in so far as the rights and duties of such individuals and non-state entities are the concern of the international community.
This is the result of certain developments in the international community, primarily the establishment of international organizations and institutions such as the United Nations, which possess an international identity of its own, capable of entering into relations with other nations, and the ever increasing activism in the international community to protect human rights and fundamental freedoms of individuals, resulting in the creation of new rules for the punishment of persons committing international crimes such as genocide, which started with the Nuremberg Trials of Nazi Germans.
The United Nations, the most influential among international organizations, was created on June 26, 1945. The declared purposes of United Nations are to maintain peace and security, to develop friendly relations among nations, to achieve international cooperation in solving international problems, and to be a center for harmonizing the actions of the nations and attaining their common ends. The Charter of the United Nations has been adhered to by virtually all states. Even the few remaining non-member states have acquiesced in the principles it establishes.
International Law includes the basic, classic concepts of law in national legal systems — status, property, obligation, and tort. It also includes substantive law, procedure, process and remedies and is rooted in acceptance by the nation states that constitute the system.
The primary and material sources of customary law are:
- Customs. These are generally evolved through a long historical process which culminate in their acceptance by the community. The importance of customary law has significantly increased over the years as law making treaties have been signed between states. The International Law Commission is also involved in codifying the variousary international laws which have resulted in treaties such as the Vienna Convention on Diplomats.
- Treaties. They may be of two types – law making treaties which lay down or enunciate general rules for universal application, and treatracts that are law as between the signatory states.
- Decisions of Judicial or Arbitral Tribunals. The only international judicial tribunal is the International Court of Justice. The decisions of the International Court of Justice are, however, not binding except between the disputing parties and with regard to the particular dispute. The court may, however, use its decisions as a guidance of the law while deciding later cases. Besides the International Court of Justice, there may be other temporary international judicial tribunals set up for a specific purpose that have a major contribution towards the development of international law. An example of this is the International Military Tribunal at Nuremberg, established in 1946. Decisions of other regional international courts, such as the European Court of Human Rights and the Court of Justice of European Communities, also contribute to the development of International Law.