Approaches to Peace, International Law

1) Introduction
i. States have strong incentives to free themselves from the
insecurities of international anarchy.States face common
coordination and collaboration problems, yet cooperation remains
difficult under anarchy.
ii. To facilitate cooperation, states create international institutions,
of which three levels exist in modern international society:
constitutional institutions, fundamental institutions, and issue
specific institutions or 'regimes'. We are concerned with
fundamental institutions, of which international law is one of
the most important.
iii. The quest for global governance is pushing international law
into new areas, raising questions about whether international
law is transforming into a form of supranational law.
iv. Individuals, and to some extent collectivities, are gradually
acquiring rights and responsibilities under international law,
establishing their status as both subjects and agents under
international law.
v. Non-governmental actors are becoming increasingly important in
the development and codification of international legal norms.
2) What is International Law?
i. International laws are rules which relate to the functioning of
individuals, institutions and states in the international arena.
ii. International law has various ingredients including general
principles of law and justice, which are equally suited to
regulating the conduct of individuals, organizations within a
state and states themselves.
3) Evolution of International Law
i. Formulation of international law can be traced back to the third
and fourth millenniums B.C.
ii. Early rulers had made international rules to safeguard
emissaries, initiation and cessation of hostilities and
arrangement of truces, and maritime laws.
 iii. To aid governance, the Romans devised principles of just gentrium
or law of the people. By the time the Roman Empire fell,
application of these laws was widely accepted.
iv. European states also contributed to international laws at a later
stage in history. By the 14th century, scholars were writing
about international law. Hugo Grotius, for example, produced a
momentous work on laws concerning war and peace,
emphasizing the independent nature of law.
v. During the eighteenth century, three prominent schools of
thought concerning international law were evident; the
positivists, the naturalists and the Grotians.
vi. The naturalists believed in upholding morality through laws.
The positivists focused on practicalities and the consensual
nature of these laws. The Grotians combined both naturalists
and positivist elements.
vii. In the past century, the League and the UN system, and
subsequently the International Court of Justice have made
important contributions to international law. Other institutions
like IMF or WTO influence laws concerning trade economic
laws.
4) Different Types of International Law
i. Private and Public Laws: private law concerns individuals,
whereas public law concerns the behavior of organizations and
even states.
ii. Procedural and Substantive Laws: Procedural laws define types of
permitted behavior whereas substantive laws concern territorial
rights of states.
iii. Laws of War and Peace: There are laws governing behavior of
states in a state of war (concerning rights of prisoners of war) and
those meant to prevent outbreak of violence and promote peace.
iv. Particular and General Laws: General or universal laws are
applicable to all sovereign states, whereas particular laws are
defined by bilateral or regional agreements.
5) Another Perspective on International Laws
i. The laws of power, coordination and reciprocity; Laws of
power regulate master-slave relations. Those of coordination
regulate relations amongst members of the same group. Laws of
 reciprocity refer to the intermediary interaction which implies
mutual benefit.
ii. Naturalists vs. Positivists;Naturalism and positivism developed
side by side. Naturalists argued that Divine authority was the
source of all laws.Positivists argued that only those
international laws had validity, which were adopted by
consent of sovereign states.
6) Sources of International Law
i. Article 38 of the ICJ recognizes natural laws, general laws, custom
and legal commentaries as the basic sources of international law.
ii. Based on principles of universal acceptability, some natural laws
are applicable across the world.
iii. Based on the implicit or explicit consent of states, customary
laws are mainly based on customs or treaties.
iv. General laws defined with reference to terms like justice or
rights, enables jurists to fill in the gaps left by positivist laws.
v. Legal commentaries help clarify, elaborate upon and apply the
broad nature of laws to specific circumstances
7) Formulation & Implementation of International Laws
i. There is no formal institution to make international laws, so
they are made outside of formal institutions. Issue of Treaties.
ii. If a sufficient number of states follow a customary practice, it
becomes an international custom.
iii. The International Court of Justice (ICJ), which is composed of UN
member states recommended by the Security Council, has an
advisory capacity to interpret treaties, but it lacks the authority of
national courts.
iv. International tribunals also lack the authority of national
judicial institutions.
8) Modern International Law and its Evolution
i. Modern international law is a historical artefact, a product of
the revolutions in thought and practice that transformed the
governance of European states after the French Revolution
(1789).
ii. Prior to the French Revolution, in the 'Age of Absolutism', law
was understood principally as the command of a legitimate
superior, and international law was seen as a command of God,
derived
 from natural law. In the modern period law has come to be seen
as something contracted between legal subjects, or their
representatives, and international law has been seen as the
expression of the mutual will of nations.
iii. Because of its historical roots, the modern institution of
international law has a number of distinctive characteristics,
informed largely by the values of political Liberalism.
iv. The most distinctive characteristics of the modern institution of
international law are its multilateral form of legislation, its
consent-based form of legal obligation, its language and practice
of justification, and its discourse of institutional autonomy.
v. So long as international law was designed to facilitate
international order, it was circumscribed in key ways: states were
the principle subjects and agents of international law;
international law was concerned with the regulation of inter-state
relations; and the scope of international law was confined to
questions of order.
9) International Law and Views of Different Theories
i. Realists argue that international law is only important when it
serves the interests of powerful states.
ii. Neo-liberals explain how self-interested states come to
construct dense networks of international legal regimes.
iii. Constructivists treat international law as part of the normative
structures that condition state and non-state agency in
international relations. Like other social norms, they emphasize
the way in which law constitutes actors' identities, interests, and
strategies.
iv. New Liberals emphasize the domestic origins of state
preferences and, in turn, international law. Within
international law, they stress the need to disaggregate the
state to understand transnational legal integration and
interaction, and they prioritize international humanitarian law.
v. Critical legal studies concentrate on the way in which the
inherent Liberalism of international law seriously curtails its
radical potential.
10) International Humanitarian Law and War
 i. International law is increasingly affecting domestic
legal regimes and practices, and the rules of the
international legal system are no longer confined to
issues of order. As international humanitarian law
evolves, issues of global justice are permeating the
international legal order.
ii. Placing limits on the legitimate use of force is one of
the key challenges of the international community,
and the laws of war have evolved to meet this
challenge.
iii. The laws of war have traditionally been divided into
those governing when the use of force is legitimate,
jus ad bellum, and how war may be conducted, jus
in bello.
iv. Laws governing when war is legally permitted have
changed dramatically over the history of the
international system, the most notable difference
being between the nineteenth-century view that to
wage war was a sovereign right to the post-1945
view that war was only justified in self-defence or
as part of a UN mandated international peace
enforcement action.
v. Laws governing how war may be conducted divide,
broadly, into three categories: those governing
weaponry, combatants, and non- combatants.
11) International versus National Laws
i. National laws have much greater legitimacy than
international laws.
ii. While individuals rarely have recourse to self-help
within nations, states rely on self-help as a matter of
norm lest they are bound by a treaty of some sort.
iii. With the passage of time, international laws are
becoming more accepted and complex and
sanctions and international censure ensure states
to oblige to them.
12) Relevance of International Laws
i. Despite its limitations, international law helps
give shape to international order.
ii. It influences and channels bilateral or
even multilateral economic, social and
political cooperation.
iii. It provides the normative background
based on which independent states can
make their decisions.