Académique Documents
Professionnel Documents
Culture Documents
By
Rashida Talat
Rashidatalat@gmail.com
CONTENTS
INTRODUCTION...........................................................................................................................1
LAW.............................................................................................................................................1
INTERNATIONAL LAW............................................................................................................1
REPRESENTATION OF THE INTERNATIONAL LAW..............................................................2
DEFINITION...................................................................................................................................3
CLASSIFICATION BASED ON DEFINTION..............................................................................5
NATURE OF INTERNATIONAL LAW.........................................................................................5
DISCUSSION - A light on its Implication......................................................................................6
State as a Subject of International Law.......................................................................................7
SOURCES OF INTERNTAIONAL LAW......................................................................................8
Treaties.........................................................................................................................................8
Custom.........................................................................................................................................9
General Principles of Law...........................................................................................................9
Naturalists and Positivists........................................................................................................9
Judicial Decisions and Legal Scholarship.................................................................................10
Judicial Decisions..................................................................................................................10
Legal Scholarship..................................................................................................................10
THE ENFORCEMENT OF INTERNATIONAL LAW................................................................11
EFFECTIVENESS OF INTERNATIONAL LAW........................................................................12
Common Self-Interest and Necessity........................................................................................12
Flexible Nature of International Law........................................................................................12
Practitioners of International Law.............................................................................................12
WEAKNESS OF INTERNATIONAL LAW.................................................................................13
Lack of certainty........................................................................................................................13
Vital rules and Interests.............................................................................................................13
SUGGESTION..........................................................................................................................14
CONCLUSION..............................................................................................................................15
BIBLIOGRAPHY..........................................................................................................................16
INTRODUCTION
LAW
Law is that element which binds the members of the community together in the adherence to
recognized values and standards.
It is both permissive in allowing individuals to establish their own legal relations with rights and
duties, as in the creation of contracts, and coercive, as it punishes those who infringe its
regulation.
In simple terms: Law is a rule recognized, enforced and governed by State1.
INTERNATIONAL LAW
International law, as understood among civilized nations, may be defined as consisting of those
rules of conduct which reason deduces, as consonant to justice, from the nature of the society
existing among independent nations; with such definitions and modifications as may be
established by general consent (element of international law by Wheaton).
It can be regarded as laying down as established practice of international law that in the absence
of stipulation a new state takes over and becomes bound by the liabilities of its predecessor.
In simple terms: International law regulates the relations between states or countries1.
If international law were to be boiled down to two keywords, we would be left with consent and
sovereignty. Under this system, states are free to act as they wish in domestic matters and pursue
their interests internationally. Limits on sovereignty must be consented to by states when signing
treaties or joining international legal conventions; however, this consent can always be rescinded
and there are few if any mechanisms in existence that can compel a state to act or keep an
obligation.
3 Janet Forsyth, Careers Adviser, Careers Service, University of Edinburgh (made available by the University of
Nottingham)
DEFINITION
Professor Charles Cheney6 defines international law as, That body of law which is composed
for its greater part of the principles and rules of conduct which states feel themselves bound
to observe, an therefore, do commonly observe in their relations with each other
another.
By Austins10 broadest definition, law is a rule laid down for the guidance of an intelligent
being by an intelligent being having power over him. Laws, as they are usually conceived,
5 http://www.germanlawjournal.com/pdfs/Vol10No07/PDF_Vol_10_No_07_SI_859-876_Scott.pdf
5
are established by political superiors and imposed on those over whom the superior has the
authority to enforce them.
In these situations, the superior creates a command through his/her willingness to harm a
violator in the case of noncompliance. Without this credible threat, a law is not a
command, but merely an articulation of a wish or desire. Since states are all independent,
equal players on the international stage without any higher power governing their actions,
there exists no political superior to posit or enforce international law. As this is the case,
international law falls into the category of law not established by political superiors that
Austin describes as mere opinion rather than law. These constitute the combined
opinions of how those in the international community would like to see the world
governed.
J.L. Brierly says that consent cannot of itself create an obligation; it can do so only within a
system of law which declares that consent duly given, as in a treaty or a contract, shall be
binding on the party consenting.11 Therefore, there is a theoretical hole in this positivist
concept of obligation despite its simplicity, popularity and intuitive plausibility. It cannot
explain why international law is binding as law.
Brierly opined that international law had its genesis from the European nations who were
conscious of their common Christian background and common history from the Roman
and Greek civilisations. Brierly was against the school of thought that said that
international law is a branch of ethics and not a law. He was of the opinion that if it were
simply international morals than what the other moral are and ethics used in the conduct
of relations between states.
An example of this would be the non-binding nature of international comity, which
comprises of the act saluting the flags if other countries warships while at sea 7. These are
not binding obligations, no sanctions will be imposed if these codes of morality or ethics
are violated, and they are performed out of mere courtesy.
C.G. Fenwick defines International Law as the body of general principles and specific
rules which are binding upon the members of international community in their mutual
relations.
11 J.L. Brierly & Humphrey Waldock (Ed), The Law of Nations (1963)
Schwarzenberger has defined International Law as the body of legal rules which apply
between sovereign states and such other entities as have been granted international
personality.
7
(b) International Law is a positive morality,
Supporters: John Austin, Hobbes, Holland, Bentham, etc.
(2) International Law is a True Law.
Luis Henkins opinion:
Almost all nations observe almost all principals of International Law almost all their obligations
almost all the times.
(a) Objective of any law is implementation
(b) Means & Methods are not so important.
Supporters: Oppenheim, Brierly, J.G. Starke, Kelson, Hart, etc.
14 http://www.icj-cij.org/docket/files/91/13685.pdf
8
contended rather that it was not internationally responsible for the violations of international
law that had taken place.
In fact there is no modern day example of a state claiming that it is not bound by general
rules of international law, although there is often a great deal of debate as to the precise
obligations imposed by that law (as in the Bosnia Serbia Genocide Case where there was
argument over the precise obligations imposed by the Genocide Convention).
This is powerful evidence that states follow rules of international law as a matter of
obligation, not simply as a matter of choice or morality. If this were not so, there would be no
need for states to justify their action in legal terms when they departed from a legal norm.
Public international law (or international public law) concerns the relationships between
sovereign nations. International law consists of rules and principles which govern the
relations and dealings of nations with each other. It is developed mainly through multilateral
conventions. Its modern corpus started to be developed in the middle of the 19th Century.
International law is divided into conflict of laws (or private international law) and public
international law (usually just termed as international law). The former deals, with those
cases in which foreign elements obtrude, were raising questions as to the application of
States play the central and undisputed leading role in the creation of international law 16.
However, the determination of whether an entity is actually a State can present a challenge.
The generally agreed upon criteria for statehood are:
15Under the Genocide Convention adopted by the United Nations General Assembly on 9 Dec
1948, and which entered into force on 12 January 1951.
16 D'Amato, A., The Concept of Custom in International Law (Cornell University Press: Ithaca,
New York, 1971)
Issue in statehood that has been highly controversial for many years is the recognition of the
State of Palestine. In such an instance this region is internationally recognized by many states
(de jure), however controls little to no portion of their claimed territory (de facto).
State representation, where more than one government tries to represent a single state, is also
an important consideration.
For example, even though the Taliban religious movement effectively controlled
Afghanistan prior to the U.S. invasion in 2001, Afghanistan was represented in the
UN by the government that had been deposed by the Taliban, but still claimed to be
the countrys legitimate rulers17.
17 http://www.economist.com/node/903168
18 http://www.icj-cij.org
19 http://www.icj-cij.org/documents/?p1=4&p2=2
10
Treaties
Treaties are similar to contracts between countries; promises between States are exchanged,
finalized in writing, and signed. States may debate the interpretation or implementation of a
Custom
Customary international law (CIL) is more difficult to ascertain than the provisions of a
written treaty. CIL is created by the actual actions of states (called state practice) when they
demonstrate that those states believe that acting otherwise would be illegal. Even if the rule
of CIL is not written down, it still binds states, requiring them to follow it.
For example, for thousands of years, countries have given protection to ambassadors. As far
back as ancient Greece and Rome, ambassadors from another country were not harmed while
on their diplomatic missions, even if they represented a country at war with the country they
were located in. Throughout history, many countries have publicly stated that they believe
that ambassadors should be given this protection. Therefore, today, if a country harmed an
ambassador it would be violating customary international law.
https://treaties.un.org/doc/Publication/UNTS/Volume%201155/volume-1155-I-18232-
English.pdf
21 DUKE LAW JOURNAL [Vol. 1983:876]
11
Heinrich Triepel (1868-1946) has given a modern spin to positivism by saying that
international law must lie in the will of all of the states involved. He laid down that once a
(TRA) law had been made implicitly (customs) or explicitly (treaties) by the countries, it
could not be unilaterally revoked by any of the parties22.
While the naturalist Samuel von Pufendorf declined to subscribe to the idea that an
agreement between sovereigns could constitute positive law. According to Pufendorf
international law was simply the natural law of states23
22 The Persistent Spectre: Natural Law, International Order and limits of legal positivism
23 Samuel von Pufendorf, An Introduction to the History of the Principal Kingdoms and States
of Europe [1695].
12
Judicial Decisions
The Judicial decisions24 of international courts and tribunals, as well as those of municipal
courts may play a "subsidiary" role in helping to determine rules of international law.
Legal Scholarship
Legal scholarship25, on the other hand, is not really authoritative in it, but may describe rules
of law that are widely followed around the world. Thus, articles and books by law professors
can be consulted to find out what international law is.
13
after its invasion of Kuwait27), it is more in the way of keeping or restoring the peace than of
enforcing the law.
It may be that the assumed certainty of enforcement of national law masks its true basis and,
in the same way, enforcement may be irrelevant to the binding quality of international law.
Oppenheim, Brierly and Starke were of the opinion that international law is a law due to the
fact that it could be implemented or enforced. On the other hand, scholars like Thomas
Hobbes, and Jeremy Bentham are of the opinion that seeing that International law is not
binding or enforceable, it is not a law in the true sense.
The fact of enforcement may be a reason why individuals obey the law (and that is not
certain), but it is not the reason why it is actually law.
In international law, then, the fact that rules come into being in the manner accepted and
recognised by states as authoritative is enough to ensure that law exists. Less effective
enforcement procedures may encourage states to flout the law more frequently than the
individual does in national legal systems (although this is arguable), but that is a question
about motives for compliance with law, not about its quality as law.
14
15
Lack of certainty
The disadvantage of a system of flexible and open-ended rules is a lack of certainty. It sometimes
seems that many of the disputes between states occur precisely because the rule of international
law governing their conduct is not clear, rather than that one state is deliberately behaving
illegally.
For example, disputes generated by trans-boundary pollution (e.g. the Chernobyl
incident) are only made worse by the lack of clear rules defining the ambit of state
responsibility for apparently lawful acts.
It is true of all legal systems that the vital interests of its subjects may prevail over the
dictates of the law. Sometimes this is recognised by the legal system itself, as with the
law of self-defence and necessity in international law, but usually it is not. International
law is no different from national law in this respect and it is unrealistic to expect perfect
obedience.
However, it may be that because international law lacks formal enforcement machinery,
the temptation and opportunity to violate the law is greater than in other systems. In this
sense, international law is weaker than the Domestic law.
16
EXAMPLE: With the invasions of Afghanistan, Iraq and Lebanon, the use of the veto to
prevent the Security Council acting in respect of Syria in 2012 30 and the Israeli violation
of Argentinians sovereignty in seizing the war criminal31, Adolf Eichmann, in 1960.
SUGGESTION
One view of international law is that its first task should be to ensure that the
international community runs on orderly and predictable lines. In this it largely succeeds.
The absence of a compulsory court structure means that some disputes may persist for
decades to the detriment of all concerned, as with Argentina and the UK over the
17
CONCLUSION
It may be concluded that at present, World is, in reality, regarded as an international
community. John Austin regarded International Law as a positive morality in the 19th
century, when international community lacked legislation, a court, sanctioning powers and
enforcement machinery. And in view of all these if he concluded that International Law is not
a true law, perhaps he was not wrong. But presently, international legislation has come into
existence as a result of multinational treaties and conventions. These include the recognition
that certain rules have the character of jus cogens, which reduces the area for the operation of
purely consensual rules, and establishes that within general body of rules of the International
Law there exists superior legal rules, with which rules of a lower order must be compatible.
Security Council of the United Nations is empowered to take measures to enforce the
decisions of the Court, if the aggrieved party seeks the help of the Council.
Further, international community has a Court (International Court of Justice), whose
decisions are binding upon the parties to a case.
If a party falls to perform its obligations incumbent upon it under a judgment rendered by the
Court.
Practice of states suggests that they consider themselves bound by such rules. If rules are
violated by a State, sanctions may be applied against it not only by the aggrieved State itself
but collectively by the United Nations Organization (UNO) as well.
Existence of International legislation, a Court, sanctioning authority and the enforcement
machinery are the developments of the present century.
Personally, I agree with the view of John Austin. But, the Statement of International Law is
a true law is evident even if Austins definition is accepted. In the light of these
developments, perhaps one would not hesitate to call International Law as a true law even if
Austins definition of law is accepted.
18
BIBLIOGRAPHY
1. Dr. V. Balakista Reddy, Introduction to International Law.
2. Oppenheim, International Law, Vol. 1, Eight Edition (1995).
3. Austin, John. The Province of Jurisprudence: Determinated by John Austin. Aldershot:
Dartmouth, 1998.
4. United Nations. (1945, June 26). Statute of the International Court of Justice. Retrieved:
from: http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0
5. Megret, Frederic, Globalization and International Law (August 4, 2008). MAX PLANCK
ENCYCLOPEDIA OF INTERNATIONAL LAW, Oxford University Press, 2009. Pg. 6
6. J.L. Brierly, The Outlook for International Law 5 (1944).
7. Stephen Hall, The Persistent Spectre: Natural Law, International Order and the limits of
legal positivism, European Journal of International Law.
From : http://www.ejil.org/pdfs/12/2/1518.pdf
8. Anthony DAmato, Is International Law Really Law?, Northwestern University School
of Law Scholarly Commons.
http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?
article=1102&context=facultyworkingpapers
9. L. Oppenheim, International Law 177-79 (H. Lauterpacht 7th ed. 1952).