What is International Law?

ADCO Law

International Law is a term that is often encountered by academics and writers of international journals. In general, there are still many people in the world, especially in Indonesia who do not understand the theory, application, and various types of International Law. Many experts have discussed and explained the development and improvement of International Law over the last few decades. Therefore, to figure out what International Law is, let’s have a look at the article below. 

A. Terms and Definitions of International Law

The terminology of International Law used in Indonesia is the equivalent of foreign language terms i.e., International Law (English), Droit International (France), and International Recht (Netherlands). Some works of literature use different terms but still refer to the same meaning, such as International Law, the Law of Nations, Interstates Law, World Law, and Transnational Law. Legal experts such as Mochtar Kusumaatmadja and Etty R. Agoes explicitly define Public International Law to distinguishe it from Private International Law. According to them, Public International Law constitutes rules and legal principles governing relations or issues that cross state boundaries (international relations). Therefore, International Law can be defined as a set of legal rules that mainly regulate the principles of international relations that countries must obey as subjects of International Law.

B. International Community

The next thing to discuss after understanding the definition of International Law is the community in international relations, which is called the international community where there is a complexity of living together that is permanently and continuously intertwined amongst independent, sovereign, and equal states that are bound by (subject to and obeying) the international legal system. The following are characteristics of the international community:

1. The existence of soveriegn states;
2. The existence of official relationships amongst countries;
3. The existence of relationships based on a shared desire to pursue common purposes or interests;
4. The existence of common principles or rules governing the relationship to reach mutual purposes;
5. The existence of concurrent legal rules or principles that embody natural law.

Relations involving the international community and International Law cannot be separated. Therefore, the international community must be recognized as the sociological foundation of International Law. Furthermore, the direct relationship between International Law and international community is reflected in the form of international relations amongst sovereign states. Meanwhile, the indirect relationship is reflected in the relationship between people of different nationalities.

Read More: Law firm Jakarta

C. Binding Power of International Law

How can International Law be binding on a country and be applied? In this section we will find out the theories about the binding power of International Law, as follows:

1. Natural law Theory
   Natural law is applied in the life of the people of nations. Therefore, International Law is part of a higher law, namely natural law.
2. Positivism Theory
   This theory bases the binding power of International Law on the country’s efforts to comply with International Law. Therefore, positivism considers International Law equal to positive national law because International Law originates from the fundamental norm of a country, and the country itself approve that the law exists and is binding.
3. The Theory of the Vienna
   The binding power of International Law is not a factor that encourages a country to comply with International law, but the fundamental legal norm—so-called the Grundnorm—which is the highest law in a country that encourages it to bind itself to International Law.

4. The theory of the French
   According to this theory, the problems faced by humans are the same as those faced by countries/states. All these problems can basically be understood from the human nature as social beings to join other social beings, and from their need for solidarity. Nations also have human needs and social instincts as individuals. Therefore, international law has binding legal force, including for the purpose of the fulfillment of human/nation/state needs to live in an orderly, peaceful, and prosperous community.

D. Subjects of International Law

Subjects of law are defined as advocates of rights and obligations. In more detail, Mochtar Kusumaatmadja explains that subjects of International Law are any entities that by law can have rights and obligations, and have the authority to have legal relations or to act under current International Law. The subjects of International Law consist of eight i.e., States, Holy Emperors, International Organizations, International Committee of the Red Cross, Belligerents, Individuals, Multinational Corporations, Transnational Corporations, and Non-Governmental Organizations.

Read More: Offenses is

E. Strengths and Weaknesses of International Law

There is no doubt that International Law is recognized by the international community as actual law and is adhered to as a rule of law due to the following factors:

1. The mutual need and interest in ensuring legal certainty and order in the conduct of international relations;  
2. Political and economic costs that must be paid for violating International Law, such as loss of trust from foreign parties, elimination of various aids and facilities from foreign parties, exclusion from international relations, withdrawal of membership from international organizations;
3. Sanctions imposed by other countries, international organizations and courts;
4. Psychological factors such as fear of being criticized or condemned by others

While International Law has various strengths, it also has weaknesses in its application:

1. Lack of formal law enforcement agencies;
2. The absence of International Law enforcement officers who are ready to monitor and take action against violations of International Law, which are only ad hoc in nature;
3. Although there are prosecutors and judges in international courts, they do not have the power to force violators directly as generally in national courts;
4. No international court has Compulsory Jurisdiction;
5. The lack of clarity on the existing rules of International Law, which leads to  the occurrence of various interpretations in the field and results in a lack of legal certainty

F. Relations of International and National Law

International Law as a field of law is an inseparable part of the legal system in general. There are several theories that underlie this, as follows:

1. Dualism Theory
   The dualistic view regarding the relations between International and National Law is that between the two are two completely different and separate legal systems. International Law has an intrinsically different nature from national law in a way that the binding force of International Law stems from the will of the state.
2. Monism Theory
   Important points that arise as a result of the monism theory view are that there is a hierarchical relationship between national law and International Law instruments. National and International Law bring up two groups of schools i.e., the Vienna and the French school of thought.
3. Transformation Theory
   This theory teaches that International Law to be enforced and respected as a national legal norm must go through a transformation process, both formally and substantially. Formally, it must comply with the provisions of national laws and regulations. Substantially, it must not conflict with the fundamental principles of national law.
4. Delegation Theory
   This theory teaches that the implementation of international law is left to each country or national law so that International Law can be applied through national law for the benefit of that country.
5. Harmonization Theory
   This theory teaches that international and national law must be interpreted in such a way that there is harmony between them. In short, international law and national law are ideally in a harmonious relationship.

Read More: Sanctions is

G. Sources of International Law

Under Article 38 (1) of the ICJ Statute, the sources of International Law are stipulated as follows:

“The court, whose function is to decide in accordance with International Law such dispute as are submitted to it, shall apply:

• International conventions, whether general or particular, establishing rules expressly recognized by the contesting States;

• International custom, as evidence of a general practice accepted as law;

• The general principles of law recognized by civilized nations; and

• Judicial decisions and the teachings of the most qualified publicist of the various nations as subsidiary means for determining rules of law.”

Regarding Article 38 (1) of the ICJ Statute, according to Mochtar Kusumaatmadja, the sources of International Law, as stipulated in Article 38 paragraph (1) of the ICJ Statute, consist of:

1. International Agreements;
2. International customs;
3. General legal principles; and
4. Court verdict and doctrine of the most eminent scholars from various countries.

According to JG Starke, the sources of International Law are as follows:

1. International customs;
2. Treaty;
3. Court verdict or arbitration institution;
4. Juristic works or juridical works; and
5. Determination of the international institutions

***

ADCO Law is a law firm that offers clients a wide range of integrated legal services, including commercial transactions and corporate disputes in a variety of industry sectors.

Over the course of more than a decade, we have grown to understand our client’s industry and business as well as the regulatory aspect. In dealing with the business dynamics, we provide comprehensive and solid legal advice and solutions to minimize legal and business risks.

Should you have more queries regarding this matter, please do not hesitate to contact us

ADCO Law

Setiabudi Building 2, 2nd Floor, Suite 205C

Jl. H.R. Rasuna Said Kav. 62, Setiabudi Karet

Jakarta Selatan, 12920, Indonesia.

Phone : +6221 520 3034

Fax : +6221 520 3035

Email : [email protected]

 

Disclaimer: This article has been prepared for scientific reading and marketing purposes only from ADCO Law. Accordingly, all the writings contained herein do not constitute the formal legal opinion of ADCO Law. Therefore, ADCO Law should be held harmless of and/or cannot be held responsible for anything performed by entities who use this writing outside the purposes of ADCO Law.