Skip to content

OPPENHEIM DEFINITION OF INTERNATIONAL LAW AND IT’S CRITICISM

OPPENHEIM DEFINITION OF INTERNATIONAL LAW AND IT'S CRITICISM

                                                                                           

PROF. L. OPPENHEIM

Lassa Francis Lawrence Oppenheim (1858- 1919) was a German jurist, he is also known as father of the modern discipline of international law. According to professor Lawrence Oppenheim “Law of nations of International Law is the name for the body of customary and conventional rules which are considered legally binding by the civilized states in their intercourse with each other”.

INTERNATIONAL LAW

The term international law was used for the first time by Jeremy Bentham in 1780. Hugo Grotius/ Huig De Groot/ Hugo De Groot (1583-1645) was a Dutch humanist, diplomat, lawyer, theologian, jurist, poet and playwright is said to be the father of international law due to his writings like Law of war and peace, his active involvement in the matters of religion and state, making maritime trade free etc. Grotius seeks to achieve his objectives to minimize disharmony caused by wars by establishing a general theory of jurisprudential that would restrain and regulate wars between independent powers and state.

OPPENHIEMS VIEWS

According to him, laws are nothing but a body of rules for human conduct within a community, which can be enforced by an external power if there’s a common consent of the community for the same. Based on what he said, we can conclude that, firstly, there must be a community, secondly, a body of rule of conduct governing the community must be there and thirdly, common consent among the community for the rules to be enforced power must be present. From this, we can conclude that it’s not necessary that rules should be enacted by a legislative authority within the community for them to be legally binding.

Since 1780 then these words have been used to denote the body of rules and principles which regulate the relations among the members of international community. The term `members of international community’ now denotes States, International organisations, individuals and certain non-State entities.

(i) Oppenheim’s Definition. – Prof. L. Oppenheim has defined International Law in the following words – “The Law of Nations or International Law is the name for the body of customary and conventional rules which are considered legally binding by civilised States in their intercourse with each other”.

Criticism – Oppenheim’s definition, which was considered appropriate at one time, is now subjected to severe criticisms.

This definition can be subjected to the following criticisms :

(1) It is now generally recognized that not only States but international organizations have also certain rights and duties under International Law. This view has been finally affirmed by the International Court of Justice in its advisory opinion on Reparation for Injuries Suffered in the Service of the U.N. (1949).

(2) It is also recognized that to some extent individuals have some rights and duties under International law.

(3) It is also recognized that International law consists not only of customary and conventional rules but also of general principles of law recognized by the civilized States. This has now been expressly recognized by Article 38 of the Status of the International Court of Justice.

(4) The use of the term `civilized states’ has also been criticized. A few decades ago western States regarded only the Christian states as `civilized’ states. For being considered `civilized’ neither long history nor culture was the criterion. That is why, in later editions of Oppenheim’s book the word `civilized’ was deleted.

REVISED VIEWS OF OPPENHIEM

New Definition of International Law in Latest Edition of Oppenheim’s Book – The editors of the ninth edition of Oppenheim’s book (1992), Sir Robert Jennings and Sir Arthur Watts, have revised Oppenheim’s definition of International Law in the following words :

“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 subject of International Law. International organisations, and to some extent, also individuals may be subjects of rights conferred and duties imposed by international law.”

Thus the above concept and definition of International Law given the Ninth Edition of Oppenheim’s International Law is much better than the earlier definition and to a great extent similar to that given by Starke and Fenwick. But it is still deficient in one respect. It is silent about the general principles.

(ii) Some other Definitions of International Law similar to that of Oppenheim :-

West Rand Central Gold Mining Co. Ltd. v. King [(1905) 2 K.B. 391]. – In this case the Court observed, International Law may be defined as “the form of the rules accepted by civilized States as determining their conduct towards each other and towards each other’s subject.”

S.S. Lotus case, (1927) P.C. I.J. Series A. No. 101. – In S.S. Lotus case, International Law was defined in the following words : “International Law governs relations between independent States. The rules of law binding upon States, therefore, emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restriction upon the independence of States cannot therefore be presumed.”

Gray. – Gray defines International Law in the following words : “International Law or the Law of Nations is the name of body of rules which according to the usual definitions regulate the conduct of the States in their intercourse with one another.”

Hall. – According to Hall : “International Law consists of conduct which modern civilized States regard as being binding on them in their relations with one another with a force comparable in nature and degree to that binding the conscientious person to obey the laws of his country and which they also regard as being enforceable by appropriate means in case of infringement.”

Kelsen. – According to Kelsen : “International Law or the Law of Nations is the name of a body of rules which according to the usual definition – regulate the conduct of the States in their intercourse with one another.”

REALISTIC THEORY

According to this theory, only the Nation/States are considered to be the subject of the international laws. It relies on the principle that it is for the nation/state that the concept of international law came into existence. These nations/states are distinct and separate entities, capable enough to have their own rights, obligations and duties, possessing the capability to maintain their rights under international law.

Prof. L. Oppenheim being the strong supporter of this theory believes that as the law of nations is primarily a law between the states, to that extent, subjects of the law should be nations only.

However, the theory has been criticized on the fact that it fails to explain the case of slaves and pirates as under international law, slaves have been conferred with some rights, while the pirates are treated as enemies of mankind.

CONCLUSION

International law is a set of rules which are binding between countries and aims to ensure security and peace among various nations. The subject of question under international law isn’t only the Nation/state but can be an individual also. Moreover, it has emerged through a number of sources which are codified in Article 38 of the ICJ statute, according to which, customs, treaties and general principles are considered to be the source of International Law. International law is there to maintain world order and peace, settle various disputes among different nations/states and individuals and to provide fundamental rights. However, there are still various shortcomings due to which international relations are suffering.

This article is written by Kushagra Bhagwat, B.A.L.L.B.(Hons.), 3rd year, Amity University, Lucknow Campus during his internship at LeDroit India.

Leave a Reply

Your email address will not be published. Required fields are marked *