Nature, Origins & Basis of International Law

Nature & Origins

d Definition
International law is defined as the body of
law composed of principles and rules of conduct
that statesfeel bound to observe It also includes
d rules related to the functioning
of international
organizations their relations with each other as
well as with States and individuals
b rules of law related to individuals and non state
entities in the international community

The traditional definition only concerned itselfwith

relations between states However due to developments in
the past decades it has been upgraded There devs
include
a establishment
of large number of permanent intl
institutions and organizations
b movements sponsored by the UN and Councilof
Europe to
cisprotect human rights and fundamental freedoms
of individuals
dis rules for punishment forgenocide
iii declarationfor certain actions to be war
crimes

From a practical
POV it can be said that I law regulates
the rights and duties of states

The main objective of I law is to create an

ordered system rather than a one
ail Origins and Development

the modern Syrian of I law is a productof the

part 400 years
it grew out of usage and practices of modern European
states
has influencesofjurists and writers from the 16 later
and 18 centuries
tinged with concepts of national and territorial sovereignty
and perfectequality and independence of states

however the presence of rules b w States predates Europe

and even Christianity
there were treaties related to war in AncientEgypt
and India
in Ancient China and Islamic empires there were
recourses
for mediation and arbitration
however none of there can be seen as serious

contributions towards modern International law

in Ancient Greece there were rules governing the

actions btw Greek city states as well as other neighboring
states
these rules had deepreligious influences which were
the characteristic of an era where distinctions btw
law morality justice and religion were not sharply
drawn
 in Ancient Rome there were rules governing the relatio
between Rome and other states

the total contribution of all these empires to the

development of I law was meagre
favorable conditions for development of modern law
of nations did not come till the 15 century when
Europe started to evolve into states
before this
conditions were too chaotic
is no real need
for international law

During the early medieval era two mattersmilitated

against the development of international law
the temporal and spiritual unity of Europe under
the Holy Roman Empire
structure of Western Europe hinging on a
feudal
hierarchy of power that prevented the rise of free
states

changes started taking place after the Renaissance

of Learning and the religious Reformation in the
15h and 16 centuries
newsecular concepts concepts of nationstate and
modern Sovereign developed erp in the works of
Bodin a Frenchman 1530 1596
Machiavelli an Italian 1496 15271
a Hobbes an Englishman 1588 1679
by the 15 and 16 century jurists began to take
the evolution of the evolution
of the community into
consideration
they realised the need for a body of rules to
govern relations between states
see ra ca paag 1
for list ofearly influencers
Early writers wrote a lot about the law ofwarfare
b w states which was probably due to the
fact
that European states had started maintaining standing
armies the 15 century
by
The greatest early writer on international law was the
Dutch jurist Hugo Grotius His work on the laws of war
and peace have earned him the title of the father
of the law of nations However his work borrowed a
lot from the writings of Gentiles Belli Ayala and
others before him

It should also be noted that Grotius work was not

comprehensive with regards to all facets of I law
his book dealt repeatedly with customs followed by
the states
of the day
a central doctrine of his work was the acceptance

of law of nature as independant sourceof rules

while his work faced criticism it remained to
be relied
upon as a work of authority in court
decisions and textbooks later writers
his work was also used to develop laws regardingjurt
and unjust war

In the two centuries after Grotius developmentog I law

was marked
by the final evolutionof the nation
Ctate system erp after the peaceof Westphalia 1648

In the 18th century jurists started to givepreredenceto

the airlines and treaties insteadof natural law

International law grewfurther in the 19th century

a process that was aided
by developments like
a rise
of powerful new states inside and outside
Europe
b enparrionof European civilization overseas
Cc modernisation of transport
d greater destructiveness modern warfare
e new inventions
of

A remarkable development in the law of war

and neutrality come in the of the Alabama
form
claims Award of 1872
care details in McQs
the care established a precedent
for me of
arbitration in international disputes
led to movement for codification of I Law
Precursor to the Hague conferences Leagueof
Nations and the United Nations
 with the pondage of time the influence writers
of
has declined and modern lawyers pay more regard
to practice and decision tribunals
g
natural law has declined in popularity due to the
growth of nation states outside Europe that had little
to no impact of the doctrines of Christianity
many long standing rules and concepts of I law
are under strain due to modern developments in
technology and social sciences
the division of the world into global and regional
blocs is aho something traditional concepts
of
I law were not equipped to handle

Ciiil Present day status of International Law

International law has developed into an indispensible

of rules regulating issues such as trade commerce
enchange of ideas and communication btw states

The growth in number of states meant that the Wow

process of custom for formation of rules could not be
relied
upon
there has been a great increase in numberof
law making treaties
remarkable development in the eve
ofarbitration
to settle international disputes
 certain quarters downplay the existence and value
of international law
cat generally held view that international law is
only designed to maintain peace
b ignorance
of a vast number of rules that have
nothing to do with war and peace
Breaches in international law that haveresulted in
war and conflict often lead people to think that
I law as a whole has broken down
this is not the care because even in conflicts
states try to adhere to the rules of conflict
states involved in conflict seek to justify their
position by reference to I law
 Theories as to Basis of International Law

cis Is international law true law

certain writers and scholars argue that international

law is not true law rather a codeof rules of
conduct of moral
force only
the foremost protagonist of this concept is John
dentin
Hobbes Pufendorf and Bentham also share this view
Austin's opinion was formed by his theory en law
in general
law was the result
of edicts issued by a determinate
sovereign legitimate authority rules were not
coming from a If
politically superior authority they
had no legal value Since there is no legal
authority that supercedes the authority the
of
state international law isnt real law
all laws should have enforcing mechanism The
anarchic nature of international system means
that laws cannot be enforced and hence
should not be called laws

Reply to Austin's views

1 in communities a systemof law was in
many
force and being observed even in the absence of a
formal legislative authority
b in the
years since Aurtin a lot of international
legislation has come into existence as a result of
law making treaties and proportionof customary rules
has diminished
Ccl Autherative agencies in the international system
look at I law as law and mid moral codes

It should be noted that certain countries treat I law

domestic law
as possessing the same force as
In the US treaties are considered as the
Supreme Law of the land

the legally binding nature of international law has

been repeatedly asserted at internationalforums
charter creating UN is explicitly and implicitly
bared on the true legality international law
of
Helsinki Declaration 11975

it is important to distinguish blue rulesof I law

and international cavity
b latter are not legally binding

Having said that one should keep in mind that

compared to stale legislative machinery international
law is weak law
rules are formulated in such a way that they
give a wide variety of options to states
there is no universal compulsoryjurisdiction for
settling disputes b w states
Many rules of international law are formulated
with great difficulty and one subject to uncertainty
due to inconsistent state practices
ailTheories as to laws of nature

natural law is a bodyofunchangingprinciplesregarded

as the basis for all human conduct
the concept of law of nature has exercised an influence
over international law
initially it had theologicaland
connotations but Grotius
it came to represent the
secularized the concept
ideal law founded on the natureof man as a
responsible being
states submitted to international law because they
considered it to be a part of the laws of nature

Vattelrefined the relationship b w I law and natural

law
it led him to hold the assumption that states
controlling the conduct of others would be contrary
to the laws of nature

the use natural law created inconsistencies

of
as different theorists interpreted metaphors differently

Traces of natural law survivetoday but in a much

ders dogmaticform
1949 and punishment
Draft Declaration for war
crimes were decided by invoking natural law
 Natural dam has played a key role in development
of I law due to its rational and idealistic character
the main defect however has been an aloofness
the realities of international intercourse shown
from
by lack of emphasis on the actual
a practicefollowed
by states in their mutual relations
liiil Positivism

positive law refers to statutes which have been laid down

by a legislature court or human institution

positivism states that laws and their operationderive

validity from having been enacted by an authority
or deriving logically
from emitting decisions notmoral
obligations
in terms of international law this nears that the
validity of law depends on states consenting to them

positivism is based on the premise that states

are metaphysical realities with their own value
and significance This notion of state will is
derived from the works of Hegel
positivists attribute complete sovereignty and
authority to state will
positivists look at international daw
as setof rules
that state wins have accepted as voluntary
actsof self restriction Without consent I law
would not be binding on states

with regards to treaties where consent is not

mentioned the consent is tacit ar implied
membership to any treaty implies consent to all
its provisions

According to Anzilotti the bindingforce ofinternational

law is pacta suit servanda He argues that just
as with treaties customary rules are also based on
the consent of states

Objections to positivism
d the notion of state will is metaphorical and
does not explain how I law is binding on states
The state will is facon de parlerof the wills of
those governing a state
Cbl difficult to reconcile facts with the consensual
theory of I law In care of customary I law
often impossible to find any consent binding
states to rules
e it is never necessary to show diplomatic assent
a state while invoking a
of particular rule of
I law against that state
d There are concrete enampler where despite the
lack
of consent states are expected to follow
certain laws in the interest of internationalpeace
and security
paragraph 6 article 2 of UN charter

despite its weakverses positivism has concentrated

attention on the actual practise of states by emphasising
that only rules that are followedbystates can be
considered as rules of I law
this has led to a more realistic outlookof
international law and eliminated academic and
doctrinal material

in sanctions of observance of International Law

A cowterversial question in the study

of I law is
the extent to which sanctions including those
involving enternal use of force are available under
I law

One view is that the international system is

one without sanctions However this isnt completely
true because
a Under Chapter1111 of the UN Charter the security
council can take enforcement action against a
 a state to maintain or restore peace
para21 the Security
b According to Article 94
Council can recommend actions against a state
that is party to a care in ICT but fails to
follow the judgement
The action by the Security Council does not have
to be
military It can also take the form of
sanctions This mechanism is also present in
treaties that a state is party to
eat Under the ILO Constitution a commissionof
Enquiry ar ICI reference can be created showed a
member state
fail to follow lLO recommendations
Cbl Under the Single Convention on NarcoticDrugs an
enplanation can be sought from members that
fail to enforce guidelines
Cc Constituent instruments of certain organizations
can suspendlenpel members failing to comply
with boric principles
for
Cdl International legal obligations can be enforced
through domestic legal systems
Article 5h 55 of 1965 Convention on Settlement
of TradeDisputes betweenStates and Nationalsof
other states
Acts by state in breachof law
e a
may be treated
as invalid or inoperative
21 June 1971 advisory opinion I CJ ruled the
South presence in Namabia was
Despite the mentioned enforcement methods it
cannot be denied that the internationalcommunity
does not have organized external force
an
this makes some people think that I law is not
a real law
one can refute this
by comparison with canon
law which was considered as law without an
enforcing mechanism
One should also remember that there are tangible
sanctions
for those rules of law that impose duties
upon individuals

Apart from sanctions and pressures mentioned

the main elements reinforcing the obligatory nature
of the ruler of I law are empirical faces that
states will insist on their rights under the rules
that they feel bound to follow