In inter-state relations, among the institutionalized approaches1 to the conduct and control of inter-state affairs, International Law is the most general and continuous and pro tanto, a more stabilizing factor in inter-state relations. It incorporates the experience of many centuries during which people across the continents have lived together and done business with each other. It represents the moral code of states as it contains the body of rules upon which they have agreed so that they may survive.2
In strict legalese, however ascribing a meaning to the term ―International Law‖ is not without its own difficulties. Especially is this so when the nature and functioning of law in municipal setting is transposed to the international arena. The controversy centers on the real quality of law. In municipal setting, law reigns over the people whereas under the international system, the concept of sovereignty makes this quality of law difficult to imbibe. Thus, the antagonists of International Law reigning over states contend that in reality, International Law is a law among states; not over them. This characterization of International Law is not without its basis, moreso considering the basic nature of the state system which is of fundamental importance to the application of the function of law in inter-state relations.
This function of law in inter-state relations not only presumes the sovereignty of states but also seeks to preserve it. It is this balancing position of law vis-à-vis the concept of
1 It needs emphasizing that the legitimacy of some of these approaches has come under the ambience of International Law such that it defines and limits their scope. Reference to International Law in this chapter in particular and work generally, mean, Public International Law.
2 Norman Palmer & Howard Perkins. International Relations, (Third Rev. Edn. India: AITBS Publishers, 2010) p. 266.
22 sovereignty in inter-state intercourse that has led to the controversy (albeit needless) as to whether International Law is Law.
In view of the foregone and within the general context of this work, we deem it necessary to highlight some of the definitions accorded International Law by text writers. Oppenheim spoke of it as ―the name of the body of customary and conventional rules which are considered legally binding by civilized states in their intercourse with each other‖3 This definition it is to be noted has the aura of eurocentricism and the romanticism it evokes among Western writers wrapped in it. Pray, by what standards do you measure the term
―civilized‖?4 Ellery Stowell defines International Law as follows: ―International Law embodies certain rules relating to human relations throughout the world which are generally observed by mankind and enforced primarily through the agency of the governments of the independent communities into which humanity is divided‖.5 Jessup defines it as ―a law applicable to relations between states‖6 whilst Fenwick defines it as ―the body of rules accepted by the general community of nations as defining their rights and the means of procedure by which those rights may be protected or violations of them redressed.‖7 Umozurike defines it as ―the rules and principles that govern states in their relations inter se‖.8 Of significance also is the Soviet view of International Law as the sum total of the norms regulating relations between states in the process of their struggle and co-operation expressing the will of the ruling classes of these states and secured by coercion exercised by
3 Oppenheim, International Law, (Longmans, Green & Co, London, 1905) pp 1&2.
4 For a critique of the use of the term ―civilize‖ to denote only relations among European states, see Dakas C J Dakas, International Law On Trial: Bakassi And The Eurocentricity Of International Law, (Jos: St. Stephen Bookhouse Inc.2003) pp 8-46. Note that the term ―civilize‖ was dropped in the 9th edition of Oppenheim‘s International Law wherein International Law was defined simpliciter as ―that body of rules that governs relations between States.‖ See also R Jennings and A Watts, Oppenheim’s International Law vol. 1, 9th Edn. Cited by M T Ladan, Materials and Cases on Public International Law, (Zaria: A.B.U. Press Ltd, 2007) p. 10.
5 Ellery Stowell, International Law, (New York: Holt, 1931) p.10.
6 Phillip C Jessup, A Modern Law of Nations, cited by Palmer & Howard, loc. Cit.
7 Charles Fenwick, International Law, cited by Palmer & Howard, Ibid.
8 U O Umozurike Introduction to International Law, (Ibadan: Spectrum Law Publishing, 1993) p.1.
23 states individually or collectively.9 A common thread running through all these definitions is the emphasis on the states. This is not unexpected as the state is the major pillar upon which International Law is founded. Be that as it may, the challenges of contemporary International Law has gone beyond being states-centric to accommodate the increasing number of other international actors.10 In this wise Antonio A.C. Trindade has posited that ―the purely inter-state dimension of International Law has been overcome and belongs to the past.‖11
M.T. Ladan12 viewed International Law from the functional point of view when he posited that,
Beckman and Butte defines International Law as consisting of rules and principles of general application dealing with the conduct of states and of international organizations in their international relations with one another and with private individuals, minority groups and transnational companies.13 Consequently, we would define International Law as the set of rules governing states in their relations inter se and with other actors of the international system where the subject is of international concern.
9 Referred to by Palmer & Howard, loc. cit, quoting A Y Vyshinsky. See also Umozurike, Ibid, footnote 1.
10 Michael Akehurst, A Modern Introduction to International Law, (London: George Allen & Urwin Ltd, 1971) P. 9; G N Okeke, Aspects of International Law, (Enugu: Joen Printing and Publishing Co. 2007) p. xiv. See also ―The Nature of International Law and the International System,‖ Available at www.oup.com/uk/orc/bin/9780199208180/dixou6e_ch01pdf . Accessed 10/1/2013.
11 Antonio A C Trindade ―The Humanization of Consular Law: The Impact of Advisory Opinion, No. 16 (1999) of the Inter-American Court of Human Rights On International Case Law and Practice, CJIL (2007) Vol. 6, No.1, P.2, Available at http://chinesejil.oxfordjournals.org/content/6/1/1.full.pdf.html accessed on 20/12/2012.
12 M T Ladan, Materials and Cases on Public International Law, (Zaria: A.B.U. Press Ltd, 2007) p. 1
13 Robert Beckman and Dagma Butte, ―Introduction to International Law,‖ available at http://www.ilsa.org/Jessup/intlawintro.pdf. accessed on 15/3/2013.
International Law inter alia lays down rules concerning the territorial rights of States (relating to land, sea and space), the international protection of the environment, International Trade and Commercial Relations, the use of force by States, Human Rights and Humanitarian Law.
24 2.2 Rationale for International Law
Like we had earlier posited, the maxim ubi societas ibi jus is not just a mere legal aphorism.
Just as Law applies to regulate the affairs of individuals massed together into a society, so also does it operate to smoothen inter-state conduct. The states of the world with their different political and economic background and ideologies comprise a community and/or society that requires standard rules for its orderly development. Against the backdrop of contemporary issues in inter-state relations like globalization, human rights issues, security and economic challenges facing most states, we cannot but agree with Prof. Umozurike when he posits as follows: ―With the world getting figuratively smaller and with the increased contacts and intensified relations, mandatory rules become even more necessary for the promotion of international cooperation and development and the avoidance of conflicts and chaos.‖14 States enjoy equality of status thus making the absence of rules an invitation to chaos and disorder; moreso, considering the fact that despite their claims of independence (in terms of sovereignty) states in real fact are naturally inter-dependent in many areas (for example, international trade). International Law thus facilitates international co-operation. It provides the criteria for the identification of states and the organization of states and of the nationality of individuals and legal entities. In the area of the environment, states have a common interest in the prevention of pollution but this requires detailed rules about such things as preserving the ecosystem and the discharge of oil from the sea vessels. The fundamental purpose of the state vis-à-vis the citizens make conflict inevitable in inter-state relations. International law aims for harmony and the regulation of disputes. This it does by creating a framework of rules which clarifies duties, thereby moderating claims.
The rational for International Law becomes imperative when viewed against the following paradigmatic approaches to inter-state relations, to wit:
14 Umozurike op. cit. p. 1. See also John T Rourke & Mark A Boyer, International Politics on the World Stage, (New York: Mc Graw-Hill, 2004) p. 220.
25 (a) International Law and the Community Approach: Contemporary international relations has thrust the idea of integration into the front burner as most states have come to realize that the challenges facing them can only be overcome if their co-operative efforts is undergirded by a supporting community structure. Thus, at the heart of today‘s inter-state relations is the need to pool resources together with a view to ameliorating the condition of living of citizens of the affected states. The need for integration may arise due to a shared history of colonialism, economic underdevelopment, military might, etc. International Law becomes the instrument that assures unto the international system the stability and confidence it needed in the face of challenges posed by integration.
(b) Conflict, Conflict Management and Conflict Resolution: Against the backdrop that states exist to maximize the benefit accruable to her citizens, it becomes inevitable that conflict must necessarily arise among actors of the international system; moreso given the limited availability of resources for exploitation. International Law comes in handy to moderate tensions arising from conflict. It seeks to regulate ways and means by which states can harmoniously compete for resources without destroying the whole system and even where conflict arises, provides mechanism for its settlement and management.
(c) War and Peace: War has been a recurrent phenomenon throughout human history.
Despite its acclaimed deleterious effects and the publicity, it has just been as frequent and much more virulent than before. While war sign-posts a breakdown of law, International Law has nevertheless not given up in attempts to constrain the waging of war and methods of warfare. In this regard therefore, International Humanitarian law since the dawn of the current century has assumed primacy in contemporary inter-state relations. In addition is the veneration accorded human rights by the world community as its denial remains the root
26 causes of wars. In this regard, a welter of international instruments exist which aim at preventing the waging of wars and the entrenching of a culture of peace.
(d) Ideologies: In the twentieth century, with aggressive totalitarianism and deep-seated conflicts between political and social systems, ideological issues became the burning realities of international life.15 Even the demise of the cold-war era has sadly not laid the issue of ideologies to rest as the mantra of developed and underdeveloped, North-South, G-8, D-8 etc still dog today‘s international relations. At present, these issues complicate and obstruct efforts to emphasis long-range problems and needs. International Law becomes a common stabilizer of all ideological interests for a more beneficial world.
2.3 Historical Exegesis of International Law from Early Origins up to Twentieth