Traditional International Law and New International Law
| Traditional International Law | New International Law | |
| Self-Explanatory, that is, the old well established principles which did not take into account the new changing world, that is, before the First World War and with few developments until the Second World War , after which developments took pace. | The traditional international law has undergone so many changes that the international lawyers have evolved a new term, i.e., ‘new international law’ to indicate the new norms and rules that have been evolved since Second World War1. | |
| It is the traditional, juridically and individualistic conception. | It may be termed as the law of Social interdependence.2 | |
| The traditional international law was envisaged as a law governing the relations of sovereign states with each other. Prof. Oppenheim defined international law as “the name for the body of customary and conventional rules which are considered legally binding by civilized nations in their intercourse with each other.”3 This definition sums up the position of classical traditional international law. But with changing times this definition has now become obsolete. | Interdependence of Nations is one of the cornerstones of the new law of nations4. It has also manifested itself in the Charter of U.N. | |
| Less importance was given to Public International Organisations. | It is now generally recognized that not only states’ but also public international organisations have rights and duties under international law, even though they might not have all the rights and duties that states have.5 Example- The establishment of League of Nations by Woodrow Wilson (1920) was a great landmark which ultimately culminated in the establishment of the United Nations (1945). | |
| N/A | The International Court of Justice (hereinafter referred to as ICJ), in its advisory opinion in Reparation for Injuries Suffered in the Service of the U.N., confirmed the development that U.N. is a “legal person” and can bring out claims for reparation for the injuries suffered by persons in the service of the U.N.6 | |
| N/A | In fact, “the future of international law is one with the future of international organisation.”7 Example- Establishment of World Trade Organisation (WTO) in 1995 and International Criminal Court (ICC) in 2002. | |
| N/A | Role of Individual-> Since the Second World War international law has been enriched by a new international law that has been evolved around individual.8 Corbett has also stated that, “To me it has long meant that we are witnessing a transition in international legal development from a prolonged stage in which the predominant, not to say exclusive, concern was the regulation of the conduct of states as distinct entities to one in which equal attention is given to promoting the growth of a body of world law transcending states, and applicable on a footing of equality, to individuals, corporations, international organisations and states.”9 Thus, the most important change that has taken place is that of addition of new subjects in regard to international law. | |
| N/A | International law has undergone significant changes in the course of time. The shift has been “from the more or less formal regulation of diplomatic relations between states to an international law of welfare.”10 | |
| N/A | Further “international law is today actively and continuously concerned with such divergent and vital matters viz. human rights, crimes against humanity, scrutiny on nuclear energy, labour conventions, health issues (ex-Corona Pandemic, Ebola Epidemic). As international law moves today on so many levels, it would be surprising indeed if the traditional principles of inter-state relations developed in previous centuries were adequate to cope with the vastly more divergent subject-matters of international law of the present day.”11 | |
| N/A | These aforementioned factors necessitated the revision of Oppenheim’s definition of International law12———–> “International law13 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 Organisations and, to some extent, also individuals may be subjects of rights conferred and duties imposed by international law.”14 | |
| N/A | It is now well established that international law comprises not only of customary and conventional rules but also of “general principles of law”.15 These principles indeed are the “inexhaustible reservoir of legal principles” from which the tribunals can enrich and develop public international law.” 16 | |
Note->It is to be noted that a static conception of international law based merely on body of rules , derived from technically defined ‘sources’ will always be inadequate in facing the challenges and demands in a divided and dynamic world.17 Even the most comprehensive definition of international law viz., Oppenheim or some other jurist will always suffer from some form of defect.
- Dr. S.K. Kapoor, International Law and Human Rights, 21st edition (2017) p.6 ↩︎
- I.C.J Rep. (1948) p.4 at p.67 ↩︎
- L. Oppenheim, International Law (New York, Longmans Green & co., 1905) pp. 1-2. ↩︎
- Dr. B.V.A Roling, International Law in an Expanded World (1960) p.121 ↩︎
- Reparation for Injuries Suffered in the Service of the U.N. Advisory Opinion, I.C.J. Rep. (1949) p.174 ; D.W. Bowett, The Law of International Institutions (London, Stevens & Sons, 1963), pp. 273-310. The Holy See (Vatican) has long been regarded as having rights and duties under international law. ↩︎
- Reparation for Injuries Suffered in the Service of the U.N. Advisory Opinion, I.C.J. Rep. (1949) p.174 ↩︎
- P.E. Corbett, Law and Society in the Relation of States, p.12 ↩︎
- Dr. B.V.A. Roling, International Law in an Expanded World. (Djambatan N.V. Amsterdam 1960), p. XXII: See also W. Friedmann, The Changing Structure of International Law (1964), pp. 221-249 ↩︎
- Percy E. Corbett, The Growth of World Law (Princeton, New Jersey, 1971), p.184 ↩︎
- W.Friedmann, “Changing Dimensions of International Law”, Columbia L. Rev., Vol. 62 (1962), p. 1147 & p.477. ↩︎
- W.Friedmann, “Some Impacts of Social Organisation on International Law.” AJIL, Vol.50 (1956), p.475 &p.477. ↩︎
- Q. International Law is primarily concerned with Rights, Duties and Interests of States. Critically examine the statement with reference to the place of individuals and non-state entities in international law. ↩︎
- Q.“Today there is a huge shift of the basis of International law, though the principal component of international law is represented by binding rules, imposing duties and conferring rights upon the States.” Comment Critically ↩︎
- Oppenheim’s International Law 9th edition (Longman Group U.K. Limited and Mrs. Tomoko Hudson, 1992, Vol. I, Edited by Sir Robert Jennings & Sir Arthur Watts, p.4) ↩︎
- Oliver J. Lissitzyn, International Law Today and Tomorrow (1965), p.39 ↩︎
- Article 38 (1) (c) of the Statute of the International Court of Justice. ↩︎
- Lissitzyn Note 42, at p.40 ↩︎
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