Chapter One: General Introduction
Definitions of International Law
According to Bentham’s classic definition: international law is a collection of rules governing relations between states. It is a mark of how far international law has evolved that this original definition omits individuals and international organizations—two of the most dynamic and vital elements of modern international law
According to Hyde: International Law may be defined as that body which is composed for its greater parts of the principles and rules of conduct, which states feel themselves bound to observe and therefore, do commonly observe in their relations with each other. (Hyde, International Law, Vol I) (this is a modern definition of international law)
According to Oppenheim: International law is the body of rules which are legally binding on states in their intercourse which each other. These rules are primarily those which govern the relation of states, but sates are not only subjects of international law. International organization and to some extent, also individuals may be subjects of rights conferred and duties imposed by international law.
Torsten Gihl- the term international law means the body of rules of law which apply within the international community or society of states.
The two traditional branches of the field are: jus gentium — law of nations and jus inter
gentes — agreements between nations
Nature, Scope and Importance of International Law
1International law includes both the customary rules and usages to which states have given express or tacit assent and the provisions of ratified treaties and conventions. International law is directly and strongly influenced, although not made, by the writings of jurists and publicists, by instructions to diplomatic agents, by important conventions even when they are not ratified, and by arbitral awards. The decisions of the International Court of Justice and of certain national courts, such as prize courts, are considered by some theorists to be a part of international law. In many modern states, international law is by custom or statute regarded as part of national (or, as it is usually called, municipal) law. In addition, municipal courts will, if possible, interpret municipal law so as to give effect to international law.
Because there is no sovereign supernational body to enforce international law, some older theorists, including Thomas Hobbes, Samuel Pufendorf, and John Austin have denied that it is true law. Nevertheless, international law is recognized as law in practice, and the sanctions for failing to comply, although often less direct, are similar to those of municipal law; they include the force of public opinion, self-help, intervention by third-party states, the sanctions of international organizations such as the United Nations, and, in the last resort, war.
National states are fundamentally the entities with which international law is concerned, although in certain cases municipal law may impose international duties upon private persons, e.g, the obligation to desist from piracy. New rights and duties have been imposed on individuals within the framework of international law by the decisions in the war crimes trials as well as the treaty establishing the International Criminal Court (see war crimes), by the genocide convention, and by the Declaration of Human Rights (see Economic and Social Council).
International law comprises a practical and a normative element. It embodies the realization of states that rules and procedures are needed to regulate day-to-day interactions to produce order and stability in the international system. International law fulfills this practical need by providing rules that stabilize and harmonize systemic interactions.
International law also fulfills the normative need created by the anarchical structure of international relations, forming an ‘international society’, where a group of states conceive themselves to be bound by a common set of rules, and share in the working of common institutions.
Sovereign states produce a particular political structure for interaction which contains independent territorial units that are interdependent because they interact and affect each other's fate. Because no supreme power controls state behavior in an international system, the potential for cooperation and conflict exists. As interaction is unavoidable, states need mechanisms for regularizing their contacts. A chief mechanism devised for this purpose is international law.
The scope of international law can be categorised into six broad items, namely: one, the law of peace, which seeks the peaceful settlement of international disputes. Two, the law of war, since conflict is an inevitable outcome of human and states relations, conducts of hostilities, must conform with laid-down regulations in terms of types of military wares and ammunition to be used, and stages of their utilisation, targets and non targets of attack, areas of combat, treatment of civilians, journalists and prisoners of war and refuges; and the duties of humanitarian agencies such as the Red-Cross otherwise called ‘doctor without borders'. Three, the law of neutrality, international law forbids aggression on neutral states in war. It also spells out reciprocal responsibilities for neutral states. Law forbids them to render any form of assistance whatever military or civil to any of the parties engaged in hostility. Four, mercantile laws, which relate to regulations on international trade, foreign investment and multi-lateral trade agreements by states.
Five, is the law of the sea. The sea is very vital to the world economy as it provides varied marine food and mineral resources. It serves as a means of international transportation, and it serves as strategic resource for national defence. For these reasons, nations have fought wars over marine resources. Consequently, activities of states in the sea need to be regulated in order to present inter-state disputes. Six, convention on the use of outer spaces. The law regulates the exploration and launching of objects into outer space.
Subjects of International Law
A subject of international law (also called an international legal person) is a body or entity recognised or accepted as being capable of exercising international rights and duties. The main features of a subject of international law are: the ability to access international tribunals to claim or act on rights conferred by international law; the ability to implement some or all of the obligations imposed by international law; and to have the power to make agreements, such as treaties, binding in international law;to enjoy some or all of the immunities from the jurisdiction of the domestic courts of other States.
State and international Organization: Although this is a somewhat circular definition, there are at least two definite examples of subjects of international law, namely, States and international organisations. While States are the main subjects of international law, and have all of these capacities, there are other subjects of international law. Their legal personality, their obligations and rights need not be the same as a State. For instance, the International Court of Justice has recognised some international organisations as proper subjects of international law. In the Reparations Case2 the International Court of Justice
confirmed that the United Nations could recover reparations in its own right for the death of one of its staff while engaged on UN business. International personality was essential for the UN to perform its duties, and the UN has the capacity to bring claims, to conclude international agreements, and to enjoy privileges and immunities from national jurisdictions. It is accepted that international organisations are subjects of international law where they:1. are a permanent association of States, with lawful Objects, 2. have distinct legal powers and purposes from the member States; and3. can exercise powers internationally, not only within a domestic system. Examples of this type of international organisation are the European Union, the Organisation of American States, the African Union, Organisation of the Islamic Conference and specialised UN agencies.3The International Committee of the Red Cross, based in Switzerland, has a unique status in international law as an inter-governmental organisation as guardian of the Geneva Conventions of 1949 for the protection of victims of armed conflict. It is neither an international organisation nor a non-governmental organisation, but has a special legal status under treaty law by virtue of its important functions in upholding legal protections in situations of armed conflict.
Individuals: Traditionally, individuals were not regarded as having the capacity to enjoy rights and duties under international law in their own right, but only as those rights and duties derived from the State to which they ‘belonged’. However, there is no principle in international law that prohibits individuals being recognised as subjects of international law. It will depend on the circumstances. The development of human rights law has advanced the recognition of individuals in international law because at its heart is the idea that individuals have rights and can assert them against States under international law.
Corporations: Large multinational companies may operate all around the world, and their profits may outstrip the resources of some States. Corporations interact with States – they become legal entities under municipal law; they negotiate with States sometimes from a position of great power. Some companies are granted very favourable conditions (for example, in relation to minimum work standards, tax treatment, or immunity from legal suit) by States eager to attract inbound foreign investment. Sometimes corporations are closely connected to their home State or controlled by their home State’s government.
Non-governmental Organisations (NGOs): Organisations such as Amnesty International and Greenpeace are known as ‘NGOs’ (non-governmental organisations). They do not have international legal personality, but are involved in international political activity, and on some occasions have taken part in international activities as members of a State delegation. National liberation movements: The Palestine Liberation Organisation and Polisario (representing the people of Western Sahara, occupied by Morocco) are examples of organisations having a limited international personality through recognition by some States, or the United Nations, as representatives of their peoples.3
2Reparations for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ
Reports 174.
Historical Development of International Law (and the
emergence of various schools of thoughts)
4Early Period
In Western history, the supreme exemplar of the multinational empire was Rome. But the Roman Empire was, in its formative period, a somewhat tentative without an over-arching ethical or religious basis comparable to the Islamic religion in the later Arab empire. That began to change, however, when certain philosophical concepts were imported from Greece (from about the second century BC). Most important of these was the idea of a set of universal principles of justice: the belief that, amidst the welter of varying laws of different States, certain substantive rules of conduct were present in all human societies. This idea surfaced in the writings of Aristotle. But it was taken much further by the philosophers of the Stoic school, who envisaged the entire world as a single ‘world city-State’ (or kosmopolis) governed by the law of nature.
Cicero, writing under Stoic influence, characterized this law of natureas being ‘spread through the whole human community, unchanging and eternal’ is concept of a universal and eternal natural law was later adopted by two other groups, the Roman lawyers and the Christian Church, and then bequeathed by them to medieval European lawyers in particular made a distinction that would have a very long life ahead of it: between a jus
naturale (or natural law properly speaking) and a jus gentium (or law of peoples). They two
were distinct, but at the same time so closely interconnected that the differences between them were very easily ignored. Natural law was the broader concept. It was something like what we would now call a body of scientific laws, applicable not just to human beings but to the whole animal kingdom as well.
Medieval Ages: Natural Law Era
Universalist Approach: The European Middle Ages became the great age of natural-law thought. During this period, natural-natural-law conceptions developed under the umbrella of the Catholic Church. But it must be remembered that the idea was not specifically Christian in its inception, but rather was a legacy of the classical Stoic and Roman legal traditions. This tradition was represented outstandingly by Thomas Aquinas who was rationalist in outlook, holding the content of the natural law to be susceptible of discovery and application by means of human reason rather than of revelation. There continued to be, as in the ancient period, a distinction between the jus natural and the jus gentium, though still without any very sharp line between the two. The jus gentium was much the lesser of the two, being seen largely as an application of the broader natural law to specifically human affairs. States and private persons, were permitted lawfully to wage war for such purposes as t he punishment of wickedness or, generally, for the enforcement of the law—but not for vainglory or conquest or oppression.
Pluralist Approach of the Italians: Nowhere was the tension between the universalistic and the pluralistic tendencies of the period more evident, in practice, than in the debates over the legal status of the various ‘independent’ city-states of northern Italy. These obtained substantial de facto independence from the Holy Roman Empire in the late twelfth century, when the cities of the Lombard League defeated the forces of Emperor Frederick I. There was, however, considerable debate over what this ‘independence’ really meant. To this matter, two of the most prominent medieval lawyers—Bartolus of Sassoferato and his student Baldus of Ubaldis, who both wrote in the fourteenth century—turned their attention
Development of State Practices: Beginning in about the eleventh century, European (chiefly Italian) States began to conclude bilateral treaties that spelled out various reciprocal guarantees of fair treatment. These agreements, sometimes concluded with Muslim States, granted a range of privileges to the foreign merchants based in the contracting States, such as the right to use their own law and courts when dealing with one another. e same process was at work in the sphere of maritime trading. The sea-faring community made use of the laws of Oléron (which were actually a series of court decisions from the small island of that name in the Bay of Biscay), and also of a code of rules called the Consolato del Mare, compiled in about the thirteenth century for the maritime community of Barcelona. These codes governed the broad range of maritime activities, including the earliest rules on the rights of neutral traders in wartime.
Certain aspects of the conduct of war witnessed a high level of refinement in the Middle Ages—most notably the law on the ransoming of prisoners of war a welcome step forward from the alternatives of enslavement and summary killing). ‘the law of arms’ (as it was known) was expounded in the fourteenth century, first by John of Legnano and later by a monk named Honoré de Bonet (or Bouvet), whose book entitled the Tree of Battles, of the 1380s, became very influential. Accounts of medieval warfare, however, incline observers to harbour grave doubts as to whether even these practical rules exerted much real influence.
Classical Age
Grotius and Hobbes (weakening of the natural law)
The principal harbinger of this new outlook was the Dutch writer Hugo Grotius, whose major work On the Law of War and Peace was published in Paris in 1625—a work so dense and rich that one could easily spend a lifetime studying it (as a number of scholars have). As a natural-law writer, he was a conservative, writing squarely in the rationalist tradition inherited from the Middle Ages. In international law specifically, he had important forerunners, most notably the Italian writer, Alberico Gentili, who produced the first truly systematic study of the law of war at the end of the sixteenth century. Where Grotius did break important new ground—and where he fully earned the renown that still attaches to his name—was in his transformation of the old jus gentium into something importantly different, called the law of nations. The distinctive feature of this law of nations was that it was regarded as something distinct from the law of nature, rather than as a sub-category or means of application of natural law. Furthermore, and most significantly, this law of nations was not regarded (like the old jus gentium) as a body of law governing human social affairs in general. Instead, it was a set rules applying specifically to one particular and distinctive category of human beings: rulers of States. Now, for the first time in history, there was a clear conception of a systematic body of law applicable specifically to the relationship between nations. Eventually, although not until the late eighteenth century, the label ‘international law’ would be applied to this corpus of rules—with Jeremy Bentham as the coiner of the term. It should be appreciated that Grotius’s law of nations, or ‘voluntary law’ as it was sometimes known, was not designed to supplant or undermine traditional natural law. The function of this law of nations was basically an interstitial one—gaps where the natural-law principles were too general, or devising workable rules as pragmatic substitutes where the application of the strict natural law was, for some reason unfeasible.
Hobbes, in his work Leviathan proposed that the only possible way in which States could construct a stable international system was through the painstaking process of entering into agreements whenever this proved feasible. The natural-law duty to perform promises was the fundamental basis of this system, with the detailed substantive rules being provided by the various agreements that were actually concluded. These agreements could take either
of two forms: written or unwritten. The written form, of course, comprised treaties, of the sort of that States had been concluding for many centuries. The unwritten form was customary law, which in this period was seen predominantly as simply a tacit or unwritten treaty
.
Treaty of Westphalia
5At least some of the flavour of t he medieval natural law survived, however, chiefly in the form of the idea of the existence of something that has come to be called the ‘community of States’. the clearest symbol of this—if that is the right word for it was the peace settlement arrived at in Westphalia in 1648, at the conclusion of the Thirty Years War in Germany. The Peace of Westphalia did, however, provide a sort of template for later times in the way in which it marked out a division of labour (so to speak) between national and international spheres, placing religion carefully in the realm of domestic law. One of these was in the concept of a balance of power. Another proposition which is hardly an altogether new idea, but in this period it attained a formal articulation and recognition that it had never had before (most notably in the Peace of Utrecht in 1713, at the conclusion of the War of the Spanish Succession). In conjunction with this concept, the period was one of limited though also of frequent warfare
19
thCentury(The Crossroads of Positivism, Historicism and
Naturalism)
The public law system of the Concert of Europe
With the definitive defeat of revolutionary and imperial France in 1815, the victorious European powers (Britain, Prussia, Russia and Austria) crafted a new kind of peace settlement, based not merely on the balance of material power between the major States but also on a set of general principles of a more substantive character. These general principles were, to be sure, of a decidedly conservative character. The goal was to craft a continent wide set of political arrangements that would (it was hoped) keep the scourge of revolution from breaking out again. The peace settlement was to be policed by the major powers—who were, of course, self-appointed to the task—by way of military intervention where necessary. The powers even had a grand name for their enterprise: the ‘public law and system of Europe’. The legal order was based on faithful adherence to treaty commitments, together with respect for established laws and legitimate governments and property rights within the States of Europe. But it also included a duty on the part of rulers to ‘earn’ their legitimacy by providing responsible and efficient government to their peoples and also by cooperating with movements for orderly and peaceful change. Sometimes the powers intervened diplomatically in post-war peace settlements, if the terms imposed on the losing side looked to be too destabilizing for the continent as a whole. This occurred in 1878, when the major powers stepped in to prevent Russia from exacting too harsh a peace against Turkey after a victorious war. e Concert of Europe ‘system’ (if it could really be called that) was overtly hegemonic, in modern parlance. ere was little sign of any principle of equality of States. Still, the Concert of Europe did at least provide an ideal—if not always the reality—of collective, orchestrated State action for the preservation of international peace. To that extent, it foreshadowed the post-1945 United Nations. International lawyers, however, never gave it much attention. Instead, their ambitions were directed to another end: to unshackling international law from its natural-law heritage and making it something like a science in the modern sense of that term.
The positivist Revolution
On the conceptual front, the major feature of the nineteenth century was the dominant role of positivism. By ‘positivism’ is meant such a wealth of things that it may be best to avoid using the term altogether. The expression ‘positive law’ had been in use since the Middle Ages (since at least the fourteenth century) to refer to the man-made law of particular States, in contrast to divine law (ie, the commands of God) or natural law. What was new in the nineteenth century, however, was something called a ‘positive philosophy,’ the chief propounder of which was the French social philosopher Auguste Comte. As noted above, there was nothing the least bit new in the nineteenth century about the idea of positive law. What was distinctive about positivism as a school of jurisprudential thought was the doctrinaire insistence that positive law is the only true law or that the wholesale and principled rejection of natural law as a valid or binding guide to conduct.
On this point, nineteenth-century positivism went even further than Hobbes, who was its major progenitor. the doctrinaire positivists (as they could fairly be termed), that is to say, held fast to the voluntary law, while at the same time breaking the link between it and the natural law that link which had been so central a feature of the Grotian tradition. The partnership between the law of nations and the law of nature, in short, was now regarded as irredeemably dissolved. One of the most central aspects of positivism was its close attention to questions of the sources of international law—and, in particular, to the proposition that international law was, fundamentally, an outgrowth or feature of the will of the States of the world. Rules of law were created by the States themselves, by consent, whet her express (in written treaties) or tacit (in the form of custom).
International law was therefore now seen as the sum total, or aggregation, of agreements which the States of the world happen to have arrived at, at any given time. In a phrase that became proverbial amongst positivists, international law must now be seen as a law between States and not as a law above States. International law, in other words, was now regarded as a corpus of rules arising from, as it were, the bottom up, as the conscious creation of the States themselves, rather than as a pre-existing, eternal, all-enveloping framework, in the manner of the old natural law. As a consequence, the notion of a systematic, all encompassing body of law—so striking a feature of natural law—was now discarded. International law was now seen as, so to speak, a world of fragments, an accumulation of specifically, agreed rules, rather than as a single coherent picture. In any area where agreement between States happened to be lacking, international law was, perforce, silent. States were now perceived as possessing what came to be called ‘international personality’—and, crucially, as also possessing a set of fundamental rights that must be protected at all times. Foremost of these fundamental rights was the right of survival or self-preservation. This meant that, in emergency situations, States are entitled to take action that would otherwise be contrary to law.
The most dramatic illustration of this point in the nineteenth century occurred in 1837, when the British government, faced with an insurgency in Canada, sent troops into the United States, in pursuit of insurgents who were using that country’s territory as a safe haven. They succeeded in capturing the miscreants, killing several persons in the process and destroying a boat named the Caroline. The United States vigorously objected to this armed incursion into its territory. Britain justified its action as self-defence.
The stress on the basic rights of States also gave to positivism a strongly pluralistic cast. Each nation-State possessed its own distinctive set of national interests, which it was striving to achieve in an inherently competitive, even hostile, environment. Each State was sovereign within its territory. And each State’s domestic law could reject that country’s own particular history, values, aspirations, traditions, and so forth.
The scientific and technocratic and a-political ethos of positivism brought a new sense of precision, a business-like character to the study and practice of international law. One consequence of this was an increasing sense of professionalism and, to a certain extent, of corporate solidarity. An important sign of this was the founding, in 1873, of two major professional bodies in the International Law Association and the Institute de Droit International. is was also t he period in which international law became a subject of university studies in its own right, separate from general jurisprudence—and, in particular, from the study of natural law.
The Historical School
In international law, the impact of the historical school is evident in three principal areas: first was with regard to customary law, where its distinctive contribution was the insistence that this law was not a matter merely of consistent practice, however widespread or venerable it might be. A rule of customary law required, in addition, a mental element—a kind of group consciousness, or collective decision on the part of the actors to enact that practice into a rule of law (albeit an unwritten one). In fact, this collective mental element was seen as the most important component of custom, with material practice elegated to a clear second place. Customary law was therefore seen, on this view, as a kind of informal legislation rather than as an unwritten treat y (as the positivist s tended to hold). This thesis marked the origin of the modern concept of opinio juris as a key component of customary international law. The second major contribution of the historical school to international law was its theor y t hat t he fundamental unit of social and historical existence was not—or not quite—the State, as it was for the positivists, but rather the nation-state. In this vision, the State, when properly constituted, comprised the organization of a particular culture into a political unit. It was but a short step from this thesis to the proposition that a ‘people’ (ie, a cultural collectivity or nation or, in the German term, Volk) had a moral right to organize itself politically as a State. And it was no large step from there to the assertion that such a collectivity possesses a legal right so to organize itself. Although the nationality thesis did not attract significant support amongst international lawyers generally at the time, it did presume the later law of self-determination of peoples. The third area where the influence of t he historical school was felt was regarding imperialism—a subject that has attracted strangely little attention from international lawyers. It need only be mentioned here that the historical school inherited from the eighteenth century a fascination with ‘stages’ of history. Under the impact of nineteenth-century anthropological thought, there came to be wide agreement on a three-fold categorization of States: as civilized, barbarian, and savage
The survival of natural law
The dominance of positivism, with its stern and forthright opposition to the very concept of natural law, brought t hat venerable body of thought to its lowest ebb so far in the history of international law, but it gained its momentum back no later than a century after its downgrading. In more traditional areas of international law, the legacy of natural law is most readily discerned in the area of armed conflict—specifically concerning what came to be called measures short of war regarding the conduct of hostilities.
The 19
thcentury international legislations
The culmination of nineteenth-century international legislation and the arrival of parliamentary-style diplomacy and treaty-drafting came with the two Hague Peace Conferences of 1899 and 1907. The first Conference drafted two major conventions: one on the laws of war and one on the establishment of a Permanent Court of Arbitration (which was actually a roster of experts prepared to act as judges on an ad hoc basis. Second Hague Peace Conference, in 1907, was a much larger gathering than the earlier one
(and hence less Europe-dominated). It produced 13 conventions on various topics, mostly on aspects of war and neutrality. In due course, the Great War of 1914–18 delivered yet another matter to ponder over in international warfare: advancement of weapons, but of course, legislations governing use of arms came much later.
The twentieth and twenty-first centuries (1919-)
The Inter-war period: The international order during League of
nations
The carnage of the Great War of 1914–18 concentrated many minds, in addition to squandering many lives. Many persons now held that nothing short of a permanently existing organization dedicated to the maintenance of peace would surface to prevent future ghastly wars. Their most prominent spokesman was American President Woodrow Wilson. The fruit of their labours was the establishment of the League of Nations, whose Covenant was set out in the Versailles Treaty of 1919.
The League was a complex combination of conservatism and boldness. On the side of conservatism was the decision to make no fundamental change in the sovereign prerogatives of nation-States as these had developed up to that time. No attempt was made to establish the League as a world government, with sovereign powers over its member States. Nor did the Covenant of the League prohibit war. Instead, the resort to war was hedged about with procedural requirements—specifically that either a judicial or political dispute-settlement process must be exhausted before there could be war between League member States. Only on one occasion was the sanctions provision of the Covenant invoked: against Italy for its invasion of Ethiopia in 1935–36. The sanctions failed to save Ethiopia, since the conquest was completed before they could have any serious effect. This failure led to a period of profound soul-searching amongst international lawyers as to what the role of law in the world should be? It similarly led States into desperate searches for alternative sources of security to the League Covenant. A number of countries, such as Switzerland, Belgium, and the Scandinavian States, reverted to traditional neutrality policies.
The three major achievements of the inter-war period are: a) first multilateral initiatives on human rights, embodiment of principle of trusteeship of the dependent territories by League members and relief to refugees. Positivism was, however, far from dead and was reiterated in the Lotus judgement (France v. Turkey), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7) which gave the sense that law emanates from the voluntary and expressed consent of the sovereign states which are embodied in an agreement. Hans Kelsen, the leader of the Vienna School reconceived international law—and indeed the whole of law—as a grand, rationalistic, normative system .
Post-1945 development
The founding of the United Nations in 1945, to replace the defunct League of Nations, was a critical step in the creation of a new world order. With the UN came a new World Court (the International Court of Justice, or ICJ), though still without compulsory jurisdiction over States. the heart of the organization was the Security Council, where (it was hoped) the victorious powers from the Second World War would continue their wartime alliance in perpetuity as a collective bulwark against future aggressors. The UN Charter went further than the League Covenant in restricting violence. It did this by prohibiting not only war as such, but also ‘the use of force’ in general—thereby encompassing measures short of war, such as armed reprisals. The UN Charter was more timid than the League, however, in that sanctions (whether economic or military) were not mandatory and automatic, as in the League Covenant.
Parallel to this security programme was another one for the promotion of global economic prosperity. The economic-integration effort of the nineteenth century, shattered by the Great War and by the Great Depression of the 1930s, was to be restructured and given institutional embodiments. The International Monetary Fund was founded to ensure currency stability, and the World Bank to protect and promote foreign investment and (in due course) economic development. Trade liberalization would be overseen by a body to be called the International Trade Organization (ITO).
There scarcely seemed any walk of life that was not being energetically ‘internationalized’ after 1945 from monetary policy to civil aviation, from human rights to environmental protection, from atomic energy to economic development, from deep sea-bed mining to the exploration of outer space, from democracy and governance to transnational crime- fighting. The cumulative effect was to weld the States of the world in general and international lawyers in particular into a tighter global community than ever before.
The codification of international law, for example, made some major strides, in large part from the activity of a UN body of technical experts called the International Law Commission. e principal areas of law that received a high degree of codification included the law of the sea (with four related conventions on the subject in 1958, replaced in 1982 by a single, broader convention), diplomatic and consular relations (in the early 1960s), human rights (with two international covenants in 1966), and the law of treaties (in 1969) Also to ease the looming threat of a nuclear-war between the soviet and the US fronts, self defense became the only justifiable legal ground of war.
Emergence of New Challenges
In the 1990s, the ITO project was revived, this time with success, in the form of the creation of the World Trade Organization (WTO), which gave a significant impetus to what soon became widely, if controversially, known as ‘globalization’.
In this second round of optimism, there was less in the way of euphoria than there had been in the first one, and more of a feeling that international law might be entering an age of new and dangerous challenge. International lawyers were now promising, or threatening, to bring international norms to bear upon States in an increasingly intrusive manner. A striking demonstration of this occurred in 1994, when the UN Security Council authorized t he use of force to over throw an unconstitutional government in Haiti. In 1999, the UN Security Council acquiesced in (although it did not actually authorize) a humanitarian intervention in Kosovo by a coalition of Western powers.
International legal claims were being asserted on a wide range of other fronts as well, and frequently in controversial ways and generally with results that were unwelcome to some. For example, lawyers who pressed for self-determination rights for various minority groups and indigenous peoples were accused of encouraging secession.
And newly found (or newly rejuvenated) concerns over democracy, governance, and corruption posed, potentially, a large threat to governments over the world. Some environmenta l lawyers were insisting that, in the interest of protecting a fragile planet, countries should deliberately curb economic growth. (But which countries? And by how much?)
Economic globalization also became intensely controversial, as the IMF’s policy of ‘surveillance’ (a somewhat ominous term to some) became increasingly detailed and intrusive, and as ‘structural adjustment’ was seen to have potentially far-reaching consequences in volatile societies. Fears were also increasingly voiced that the globalization process was bringing an increase in economic inequality.
The nuclear age and the space age have led to new developments in international law. The basis of space law was developed in the 1960s under United Nations auspices. Treaties have been signed mandating the internationalization of outer space (1967) and other celestial bodies (1979). The 1963 limited test ban treaty (see disarmament, nuclear) prohibited nuclear tests in the atmosphere, in outer space, and underwater. The nuclear nonproliferation treaty (1968) attempted to limit the spread of nuclear weapons. The agreements of the Strategic Arms Limitation Talks, signed by the United States and the USSR in 1972, limited defensive and offensive weapon systems. This was first of many international arms treaties signed between the two nations until the dissolution of the Soviet Union. Other treaties have covered the internationalization of Antarctica (1959), narcotic interdiction (1961), satellite communications (1963), and terrorism (1973). The Law of the Sea (1983) clarified the status of territorial waters and the exploitation of the seabed. Environmental issues have led to a number of international treaties, including agreements covering fisheries (1958), endangered species (1973), global warming and biodiversity (1992). Since the signing of the General Agreement on Tariffs and Trade (GATT) in 1947, there have been numerous international trade agreements. The European Union (prior to 1993, the European Community) has made moves toward the establishment of a regional legal system; in 1988 a Court of First Instance was established to serve as a court of original jurisdiction on certain economic matters. The establishment of the International Criminal Court (2002), with jurisdiction over war crimes, crimes against humanity, and related matters, marked a major step forward in international law despite the United States' repudiation of the treaty under President George W. Bush.
“If there is one lesson that the history of international law teaches, it is that the world at large—the ‘outside world ’ if you will has done far more to mould international law than vice versa. By the beginning of the twenty first century, international lawyers were changing the world to a greater extent than they ever had before but perhaps the lengthiest and the greatest part of the history is yet to be written”
Interrelationship between International Law and Municipal
Law
Concept of Municipal Law
Shaw sees municipal law as law that governs the domestic aspects of government and deals with issues between individuals and the administrative apparatus.
Difference between International Law and Municipal Law
International law is concerned with the rights and duties of States in their relations with each other and with international organizations. Domestic (municipal or national) law, the law within a State, is concerned with the rights and duties of legal persons within the State. International law differs from domestic law in two central respects:
The law-making process: There is no supreme law-making body in international law. Treaties are negotiated between States on an ad hoc basis and only bind States which are parties to a treaty. The General Assembly of the United Nations is not a law-making body, and so its resolutions are not legally binding. However, UN Security Council resolutions to take action with respect to threats to peace, breaches of the peace, and acts of aggression, are binding on the 192 member States.
Enforcement: International law has no international police force to oversee obedience to the international legal standards to which States agree or that develop as international standards of behaviour. Similarly, there is no compulsory enforcement mechanism for the settlement of disputes. However, there are an increasing number of specialised courts, tribunals and treaty monitoring bodies as well as an International Court of Justice. National laws and courts are often an important means through which international law is implemented in practice. In some instances, the Security Council can authorise the use of coercive economic sanctions or even armed force. For example, in 1990 – 91 when Iraq invaded and occupied Kuwait the international community used armed force to enforce international law (resolutions of the Security Council). Subsequent controversy about the use of armed force against Iraq highlights how difficult it can be to obtain the necessary authorisation from the Security Council under the United Nations Charter. In international law, that is the only legitimate way that collective armed force can be used. In general, international law is enforced through methods such as national implementation, diplomatic negotiation or public pressure, mediation, conciliation, arbitration (a process of resolving disputes other than by agreement), judicial settlement (including specialised tribunals).
Legitimacy and supremacy of international law over domestic law
International Law is the law which governs the relations of sovereign independent States inter se Municipal law or State law or national law is the law of a State or a country and in that respect is opposed to International Law which consists of rules which civilized States consider as binding upon them in their mutual relations.
Kelsen’s observations
National law regulates the behavior of individuals International law the behavior of States or as it is put whereas national law is concerned with the international relations the so called domestic affairs of the State. International Law is concerned with the external relations of the State its foreign affairs. There is a divergence of opinion on the question as to whether International Law and Municipal Law on the various national laws can be said to form a unity being manifestations of a single conception of law or whether International Law constitutes an independent system of law essentially different from the Municipal Law.
Kelsen theory implies that all rules of international law were supreme over municipal law, that a municipal law inconsistent with international law was automatically null and void and that rules of international law were directly applicable in the domestic spheres of state. Kelsen's view was on formalistic logical grounds. They opposed strict division of the two laws as demonstrated by the dualists and accept the unitary view of law as a whole. Kelsen utilises the philosophy of Kant as its basis.
The binding and superseding nature of international law: Article 27 of the Vienna Convention on the law of treaties states that, “a party may not invoke the provisions of its internal laws as justification for its failure to carry out an international agreement. However, expression on the supremacy on the international law over municipal law in international tribunals does not mean that the provisions of domestic legislation are either irrelevant or necessary. On the contrary, the role of international legal rules is vital to the working of the international legal machine.”
The 1945 Nuremberg Trial made individuals subject of international law, there was also Angola Trial, ICTY, ICTR among others Anzilloti6 talks of the conditioning of the two laws.
In his opinionated view, state laws are imperatival and hence it has to be obeyed, whereas
international law is in the nature of promises; it is therefore necessary to transform a promise into command before it becomes applicable in the municipal law. The position also is not sacrosanct, in the sense that law is not necessarily command, people obey the law when they consent to it and often times people obey because of the possible gains that can be acquired.
The view of the monists: They maintains that the subject of the two systems of law namely, International Law and Municipal Law are essentially one in as much as the former regulates the conduct of States, while the latter of individuals. According to this view law is essentially a command binding upon the subjects of the law independent of their will which is one case is the States and in the other individuals. According to it, International Law and Municipal Law are two phases of one and the same thing. The former although directly addressed to the States as corporate bodies is as well applicable to individuals for States are only groups of individuals.
The expanding horizon of International Law: The increasing intensity of the present relationship between international and domestic law should be the subject of a serious discussion about the best way in which each domestic legal system could face the problems posed by the incorporation of international norms into national law. It is clear that international law is no longer limited to the regulation of diplomatic relations between States and the allocation of spaces and competences between countries. International rules today aim at the regulation of matters which before belonged exclusively to the domestic jurisdiction of States, matters that cover a range of questions, from the way in which a State deals with its own population to the emissions of greenhouse gases, a subject which puts almost all economic activities under the eye of international law. (Tucker, Principles of International Law, 2nd edition(New York, 1966), 291.
Misinterpretation of international law and underlying national interest: The modern international lawyers argue that international law is not fallacious, per se. But the tendency of nations to use international law as an instrument of furthering their national interests is giving international law a bad reputation. A stark example is the US invasion of Iraq. The Bush Administration initially argued that the 2003 invasion of Iraq was justified under the doctrine of pre-emptive self-defense because Iraq had stockpiled weapons of mass destruction and was supporting Al Qaeda. There wasn’t much debate at the time because the Bush Administration kept the predicate intelligence confidential, and the American public were largely willing to trust their government about matters involving U.S. security in the aftermath of 9/11. Months later, it was revealed that the intelligence did not in fact support either of those conclusions.
Inferiority of International Law and Supremacy of Municipal Law
Dualistic theory: According to the dualist view the systems of International Law and Municipal Law are separate and self contained to the extent to which rules of the one are not expressly or tacitly received into the other system. Their claimed are backed by three reasons:
a) The sources of Municipal Law are customs grown up within the boundaries of the State concerned and statutes enacted therein while the sources of International Law are customs grown up within the Family of Nations and law making treaties concluded by its members. b) In the second place Municipal Laws regulates relations between the individuals under the sway of a State or between the individuals and the State while International Law regulates relations between the member States of the Family of Nations.
c) Lastly there is a difference with regard to the substance of the law in as much as Municipal Law is a law of the sovereign over individuals while International Law is a law between sovereign State which is arrived at an agreement among them. The latter is therefore a weak law.
Inverted Monism theory: The theory that municipal law is in its nature superior to international law has never been found favour in international tribunals, and is no more than an abstract possibility. Unlike Austin who would even deny the term law to international law (but as a positive morality), interted monists do believe that international law is law qua law but not owing to the automatic control on sovereign power of states as claimed by the pure monists but due because it is a derivative of the municipal law itself (ie international law was deemed legitimate because the sovereign powers wanted it to).
The transformation theory: According to this theory it is the transformation of the treaty into national legislation which alone validates the extension to individuals of the rules set out in international agreements. The transformation is not merely a formal but a substantial requirement. International Law according to this theory cannot find place in the national or Municipal Law unless the latter allows its machinery to be used for that purpose. Inter-American Court of Human Rights in Advisory Opinion OC-7/86 requested by Costa Rica in relation to the interpretation of Article 14.1 of the American replied that, “the self executing nature of a treaty is, in general and unless there is a special provision on the matter, a problem of domestic and not international law, since it is a matter of whether such treaty acquires, given the specific domestic mechanics of its approval, the nature of a domestic norm.”
Criticizm of the transformation theory: This theory is fallacious in several respects. In the first place its premise that International Law and Municipal Law are two distinct systems is incorrect. In the second place the second premise that International Law binds States only whereas municipal law applies to individuals is also incorrect for International Law is the sum of the rules which have been accepted by civilized states as determining their conduct towards each other and towards each others subjects. In the third place the theory regards the transformation of treaties into national law for their enforcement. This is not true in all cases for the practice of transforming treaties into national legislation is not uniform in all the countries. And this is certainly not true in the case of law making treaties.
The delegation theory: According to this theory there is the delegation of a right to every State to decide for itself when the provisions of a treaty or convention are to come into effect and in what manner they are to be incorporated in the law of the land or municipal law. There is no need of transformation of a treaty into national law but the act is merely an extension of one single act.
Critisizm of the Delegation theory: The delegation theory is incomplete for it does not satisfactorily meet the main argument of the transformation theory. It assumes the primacy of international legal order but fails to explain the relations existing between municipal and international laws. It is settled by the leading English and American decisions that International Law forms part of the municipal law of those countries.
The limits of international law:
Jack Goldsmith and Eric Posner argued in their 2004 book, The Limits of International Law, that international law was really just policy, that modern nation states may sign a lot of treaties and agreements but a study of their conduct suggests that they don’t feel bound by them. Michael Scharf in his book Shaping Foreign Policy in Times of Crisis argues that the strength of international law is tested in the most trying times, such as in a national crisis of international interest or a really big international crisis and it is then that international law has proven more successful (refer to the article on success stories of international law)
In dualist systems, international law must be translated into national law, and existing national law that contradicts international law must be "translated away". It must be modified or eliminated in order to conform to international law. However, the need for translation in dualist system causes a problem with regard to national laws voted after the act of translation. In a monist system, a national law that is voted after an international law has been accepted and that contradicts the international law, becomes automatically null and void at the moment it is voted. The international rule continues to prevail. In a dualist system, however, the original international law has been translated into national law - if all went well - but this national law can then be overridden by another national law on the principle of "lex posterior derogat legi priori", the later law replaces the earlier one. This means that the country - willingly or unwillingly - violates international law. A dualist system requires continuous screening of all subsequent national law for possible incompatibility with earlier international law.
Complementary Nature of International Law and Municipal Law
International law does not entirely ignore municipal law. For example, municipal law may be used as evidence of international custom or of general principles of law, which are both sources of international law. Moreover, international law leaves certain questions to be decided by the municipal law
Harmonisation theory succinctly provides an answer to the true relationship of the two laws by asserting that The starting point in the legal order is that man lives not in one jurisdiction, but in both. International law and municipal law are concordant bodies of doctrine, autonomous but harmonious in their aim of basic human good. When faced with an actual problem, a municipal court applies the rules operative within its jurisdiction and may in fact, apply international law to the exclusion of municipal law, or vice-versa.
Public International Law and Private International Law
Public international law (or the law of nations) is a body of customary or conventional rules which are considered as legal binding by civilized states in their intercourse with each other and is concerned solely with the rights and obligations of sovereign states.
Private international law (or the conflict of laws) may be defined as the rules voluntarily chosen by a given state for the decision of cases which have a ‘foreign’ element or complexion. Thus, where two people of country X make a contract in a country Y for the sale of goods situated in Z, payment to be made in a city of X, a court of country X would certainly recognize and apply law of country Y as far as it affected the validity of the contract. The private international law forms part of municipal laws of a state and is meant for purpose of deciding weather a given case involving “foreign’ element (it shall be adjudicated upon by its own domestic laws or by laws of some other state; and (ii) shall be subject of its courts of some other state.
Private international law deals with cases in which some relevant fact has a geographical connection with a foreign country and may on that ground raise a question as to the application of one’s own or some other appropriate foreign law as to determination of the issue or the exercise of jurisdiction by domestic or foreign courts. Whereas, The public international law is concerned solely with rules concerning the rights and obligation of the
states (i.e. countries) interest and generally speaking individuals and their dealings are the sole concerns of private international law.
In the case of private international law, the disputes are of a private character, though one of the disputes, may be a sovereign state. Moreover, unlike public international law, private international law of every state is different. Also there are as many systems of private international law as there are systems of municipal law, thus, we have rules of private international law in the fields of birth, marriage, divorce insolvency, wells contracts death and the like.
The transactions over which Private International Law assumes control are strictly private in their nature, in which the State as such has generally no interest. The private contract of the citizen of one State with the citizen of another, or a conveyance or will made by the citizen of one State transferring property in another, are subjects of private international law, with which public international law has no concern.
In cases to which private international law is applicable recourse is had to judicial tribunals acting under the authority and in accordance with the rules of procedure of the country in which they sit. They are asked to hear the evidence and administer justice as though the case were one of purely domestic concern. But in a contest between sovereign states arising under the law of nations, no such recourse is ordinarily practicable. No State would consent to have its disputes decided by the courts of another power, nor to appear before them, a suppliant for the justice it demands as a right. These International laws are designed to determine where any given case will be tried out. An institution has been set in place in order to ensure that a case is being carried out in the proper jurisdiction. This institution is also responsible for many issues of citizenship that arise that pose an international conflict. The term conflict of laws itself originates from situations where the ultimate outcome of a legal dispute depended upon which law applied, and the common law courts manner of resolving the conflict between those laws. In civil law lawyers and legal scholars refer to conflict of laws as private international law. Private international law has no real connection with public international law, and is instead a feature of municipal law which varies from country to country.
The three branches of conflict of laws are a) Jurisdiction – whether the forum court has the power to resolve the dispute at hand b)Choice of law – the law which is being applied to resolve the dispute c) Foreign judgements – the ability to recognise and enforce a judgement from an external forum within the jurisdiction of the adjudicating forum.
Some remarkable areas in which Conflict of Law becomes functional are as follows: a) conflicts between the law of nationality and the law of domicile b) recognition of the legal personality of foreign companies, associations and institutions c) jurisdiction of the selected forum in the case of international sales of goods d) Recognition of Divorces and Legal Separations e) jurisdiction in divorce and marriage desolation f) application of foreign laws and case laws (All have separate conventions to deal with specific ones)
The meeting point
The fact that the jurisdictional rules of public international law impose limitations on the rules of private international law seems beyond intelligent dispute and State practice relating to jurisdictional claims over civil matters is of relevance in determining the current state of customary international law.
Unfortunately, the identified connections between public international law and private international law have gained little academic attention and the subjects of
public international law and private international law are taught separately with little if any attention being given to their respective effect on each other
Jurisdictional sovereignty: Dow Jones & Company Inc v Gutnick, [2002] HCA 56: the High Court of Australia had to decide whether a Victorian businessman, Joseph Gutnick, was allowed to sue a US publishing company, Dow Jones & Company Inc, in a Victorian court over an allegedly defamatory article available in large parts of the world on Dow Jones’ website. Further it was for the High Court to decide whether Victorian law would be applied.
International League Against Racism & Anti-Semitism (LICRA) and the Union of French Jewish Students (UEJF) v. Yahoo! Inc County Court of Paris, interim court order of 20th of November 2000: the defendant was operating a website from paris
which, amongst other things, contained an auction service where Nazi memorabilia/junk was frequently on offer. The website could be described as the Yahoo family’s “flagship”, and in contrast to the country-specific Yahoo sites (e.g. www.yahoo.fr), this site was said to be aimed at the world at large
Article 19 of the ICCPR: On an initial level it is worth noting that “international bodies responsible for scrutinising compliance with human rights standards have increasingly interpreted those obligations [e.g. freedom of expression as provided for under the ICCPR] as also having an extraterritorial scope, which could intervene in a country’s exercise of choosing its lex fori for settlement of dispute.
Universal and Regional International Law
The debate surrounding regionalism and universalism in international organizations reflects the old dilemma between centralism and local governance at the domestic level. Both the Covenant of the League of Nations and the Charter of the United Nations display a clear preponderance of universalist features. An important universalist feature of the Charter is the prevalence of Charter obligations over 'any other international agreement' (Article 103). Therefore, any regional agreements that are at variance with the Charter would have to yield. In actual practice, the most important pillar of universalism has turned out to be the provision on membership (Article 4). The almost complete participation of the international community remains the United Nations' greatest strength and source of legitimacy.
Covenant also makes reference in Article 21 to 'regional understandings like the Monroe Doctrine' . In the negotiations surrounding the drafting of the United Nations Charter, the struggle between universalist and regionalist sentiments played a prominent role. The Dumbarton Oaks proposals were strongly dominated by a universalist approach. At San Francisco important modifications in favour of regionalism were inserted at the insistence of the Latin American and Arab States. They include the right to individual and collective self-defence as enshrined in Article 51 and the primacy of dispute settlement through regional means (Articles 33(1) and 52(2) and (3). On the other hand, enforcement action remained under the overriding jurisdiction of the Security Council (Articles 24, 25, 39-42, 53(1) and 54). Interestingly enough, regional activities in fields other than peace and security received scant attention and are not regulated in the Charter. Regionalist features have emerged both inside and outside the United Nations. Internal regionalization has occurred through the composition, structure and decision-making processes of the United Nations. External regionalization has been manifested through formal and informal cooperation with regional bodies. More important than these organizational questions is the distribution of functions in such areas as human rights, economic cooperation and peace and security between universal and regional institutions and the prospects for their constructive cooperation.
Cooperation between the United Nations and regional organizations has taken a variety of forms ranging from de facto collaboration to highly formalized and permanent relationships. The most obvious formal relationship is observer status for regional organizations with particular UN organs. The General Assembly has granted observer status to a number of regional organizations, including the Organization of American States (OAS) in 1948, the League of Arab States in 1 9 5 0 , the Organization of African Unity (OAU) in 1 9 6 5 , the European Economic Community (EEC) in 1974 and the Conference on Security and Cooperation in Europe (CSCE) in 1993.
Human Right: The Vienna Declaration of the 1993 UN World Conference on Human Rights confirms that regional arrangements should reinforce universal human rights standards and endorses efforts to strengthen these arrangements. It even advocates the establishment of regional and subregional arrangements where they do not already exist.
Economic Cooperation: GATT-WTO-WB and Regional Development Banks examples are sufficient to demonstrate that regional action in the inter-regional cooperation or global arrangements under which the right complementarities can be created and an optimum allocation of resources can be achieved.
Peace and Security: The logic of the Charter led to a traditional distinction between two different types of regional institutions whose tasks were seen to be entirely different: Regional institutions for the maintenance of peace and security within the region under Chapter VIII on the one hand and alliances for the purpose of collective self-defense against external threats under Article 51 on the other. The OAS, the Arab League and the OAU were regarded as the classic examples for the former; NATO, the WEU and the, now defunct, Warsaw Pact as examples for the latter. This artificial distinction was soon cast into doubt. Chapter VIII agencies assumed functions of collective self-defense. The Secretary-General's 1992 Agenda for Peace adopts a wide and flexible description of regional arrangements and agencies including regional organizations for mutual security and defens
Enforcement Action: Practice in the relationship between regional and universal bodies in the area of peace and security has undergone significant developments over the fifty years of the United Nations' existence. Security Council supervision is especially important where military force is involved. The use of the Warsaw Pact to cover Soviet military intervention in Czechoslovakia in 1968 is a case in point. The attempt of the United States to justify its 1983 invasion of Grenada, inter alia, by reference to a call by the Organization of Eastern Caribbean States (OECS), of which the United States is not even a Member, was equally unconvincing. Moreover, the veto power of the permanent members of Security Council overrides the actions of any regional mechanism, proving the competence of UN in this area. Regional Peace-keeping: Regional institutions have repeatedly dispatched peace-keeping forces. The deployment of OAS forces in the Dominican Republic in 1965 created controversy in the Security Council but led to no clear outcome. By contrast, the deployment of OAU troops in Chad in 1981 was simply taken note of by the Security Council
There is no inherent superiority in either regionalism or universalism. The admittedly difficult task is to apply the best principles of federalism to international law by trying to find the level best equipped to deal with a specific problem. In the area of human rights, this may well be the regional level provided the right conditions have been created, the area of peace and security, a strong role of supervision and control for the universal level is indispensable. Regional economic cooperation has proved valuable but universal and inter-regional efforts have remained essential for development
