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Nature, Origin and Basis of

International Law International Law

M Hammad Sarwar Scope CSS Club

CSS-2021
Nature, Origin and Basis of International Law

1. Definition of International Law

2. Is International Law true Law?
3. Enforcement of International Law
4. Weakness of International Law
5. Effectiveness of International Law
6. Historical Development of International Law
7. Theories of International Law
8. Authors
 Definition

❖ Rules and principles of general application dealing with

the conduct of states and of international organisations
and with their relations inter se, as well as with some of
their relationships with persons, whether natural or
juridicial. – American Law Institute
 Definition
❖ Professor Shearer - International law may be defined 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, and
therefore, do commonly observe in their relations with each other,
and which includes also:
❖ (a) the rules of law relating to the functioning of international
institutions or organisations, their relations with each other, and
their relations with states and individuals; and
❖ (b) certain rules of law relating to individuals and non-states so far
as the rights or duties of such individuals and non-state entities are
the concern of the international community.
 Is International Law true law?
Against
❖ The most obvious and frequent test is to compare
international with domestic law –
❖ national legal system has a definite model -
international law falls short of it, hence not
regarded as ‘Law’
 Is International Law true law?
Against
❖ Practical level:
❖ States have little respect for international law -
national interest is paramount for them (Quest for
power)
❖ International has weak enforcement - international
law is breached with impunity.
 Is International Law true law?
Against
❖ Theoretical level:
❖ No sovereign body.
❖ John Austin (19th century jurist), argued that inter-
national law is not really law because it has no
sovereign. He defined laws ‘properly so called’ as
commands of a sovereign.
 Is International Law true law?
For
1. National law and International law have different
rationales and operate differently.
❖ Characteristics of international law
❖ International law is horizontal, whereas, domestic law is
vertical.
❖ Individual rights within a state vs Rights of states (legal
equals)
 Is International Law true law?
For
2. All states give recognition to international law to some extent
as binding
❖ Every breach of international law is regarded as ‘unlawful’, not
merely immoral. E.g. US invasion of Iraq, Israel - Palestine etc.
❖ Even violators use International law in order to justify their
conduct
❖ International law practised on daily basis
 Is International Law true law?
For

3. Majority of rules are consistently obeyed

❖ International law is extremely diverse.
❖ Violations get the most publicity
 Is International Law true law?
For
4. Enforcement of international law
❖ Does the existence of any system of law depends upon
the chances of effective enforcement?
❖ Validity of law depends upon the general acceptance by
the community to whom it is addressed and on the way
it is created.
❖ International may be termed as ‘weak law’.
 Is International Law true law?
For

5. Breaches of International do not go unpunished

❖ Sanctions.
❖ Individual criminal responsibility
❖ ICC, ICTY, ICTR
❖ Nuremberg Trials
 Is International Law true law?
For

6. Sovereign body
❖ International law is different as to domestic law.
❖ There cannot be any sovereign body, international law is
enforced through cooperation.
❖ Role of General Assembly and Security Council.
 International Law enforcement
❖ In domestic law enforcement is centralised
❖ International law: enforcement is decentralised
❖ Professor kelsen: Traditionally, in a decentralised society
enforcement of laws is accomplished through self-help.
Although it may appear that the individuals take law
into their own hands, they may nevertheless be
considered as acting as organs of the community.
 International Law enforcement
Security Council
❖ Article 24 UN Charter: function of SC is maintenance of
international peace and security
❖ Chapter 7 (Art 39 - 51): Action with respect to threats to
the peace, breaches of the peace, and acts of aggression.
❖ Art 39, 41 and 42: SC may take enforcement action in
order maintain or restore international peace
❖ Peace keeping mission
 International Law enforcement
Security Council
❖ Libya 2011.
❖ Economic sanction (South Africa 1977).
❖ Non State Actors (Res. 1390 financial and economic
sanctions against Al-Qaida and Taliban).
❖ Legal and political limitations.
 International Law enforcement
Loss of Legal rights and privileges
❖ If a state violates the terms of a commercial treaty, other state is
entitled to rescind the whole treaty.
❖ Bilateral level - termination of diplomatic ties - restriction of
economic aid.
❖ IAEA suspended Israel after latter’s unlawful attack on an Iraqi
nuclear facility.
❖ These methods are overlaid with political and economic
considerations.
 International Law enforcement
Judicial enforcement
❖ Dispute settlement methods
❖ ICJ – states not compelled to use ICJ its their discretion –
award is binding
❖ Iran-US claims tribunal (Iran hostage crisis 1979 – US had
frozen Iranian assets and Iranian national assets in US)
❖ Individual responsibility – ICTY ICTR ICC
❖ National courts also enforce international law
 Weakness of International Law
1. Lack of Institutions
❖ Law-making is slow
❖ No automatic sanctions
❖ Absence of compulsory court structure
2. Lack of clarity
3. Vital interests
4. Vital rules
❖ Field of operation of international law, rules of physical enforcement are
not as desirable or practical as they are in other legal systems.
 Effectiveness of International Law
1. Common good

2. Psychological factor

3. Flexible nature of international law

4. Political cost of violating international law

5. Sanctions
 Historical development
❖ Pacta sunt servanda
❖ Good faith
❖ Territorial issues
❖ Diplomatic issues
❖ Nation-state (state sovereignty and equality)
❖ Concept of international community
❖ Use of force
❖ Peaceful settlement of disputes
❖ International commercial laws
❖ Law of seas
❖ Rights: E.g. self-determination
 Historical development
Ancient times
❖ Impossible to fix a precise date: presumably began when a politically
organised group came into contact with another group and was prepared
to treat that group as equal, they felt the need to develop rules of conduct.
❖ Mesopotamia (2100 BC): treaty with respect to boundary
❖ Ramses II (1000 BC): Treaty for peace
❖ Pacta sunt servanda
❖ Good faith
❖ No conception of international community
 Historical development
Ancient times
❖ Greek city states (323 BC – 30 BC)
❖ Numerous treaties linked the city states together in
commercial and political association
❖ Greeks did not have the concept of a State in the
modern sense, but their use of the term polis to
describe the political organisation of cities comes close
to the modern understanding of the concept of State.
 Historical development
Ancient times
❖ Ancient Rome
❖ Codified some ideas of basic fairness, and attributed some rules to an objective, independent
‘natural law’
❖ Developed municipal laws governing the interactions between private Roman citizens and
foreigners (Jus gentium)
❖ The Jus gentium ideas of fairness and natural law have survived and are reflected in modern
international law
❖ Islam
❖ Initially law predicated upon a state of hostility towards the non-Moslem world and the concept of
unity btw Muslims.
❖ Rules of warfare were developed
❖ Once period of coquest over – laws relating to conduct with non-Moslem states began to develop
❖ Laws dealing with diplomats
 Historical development
Middle Ages
❖ Lex Mercatoria (Mercantile law)
❖ revival of trade in EU - merchants travelled throughout the continent.
❖ Special courts were set up to decide commercial disputes.
❖ Maritime law
❖ Maritime commerce increased, it became necessary to establish some rules
and standards.
❖ Rules of sea were codified – these codification became accepted throughout
Europe.
❖ Such rules were seeds to international law.
 Historical development
Renaissance
❖ Evolution of the concept of an international community of sovereign
states.
❖ Secular approach towards life.
❖ European religious wars resulted in the growing power of the nations.
They marked the decline of a continental system founded on religion
and the birth of a continental system founded on the supremacy of the
state.
❖ Greco-Roman ideas of natural law.
❖ Idea of sovereignty - Jean Bodin
 Historical development
The Foundation: Peace Treaty of Westphalia 1648
❖ Formation of ‘classical’ international law
❖ 30 years war followed by Peace Treaty of Westphalia 1648.
❖ Equal sovereignty – model of liberal legal order – each state
will decide its own laws and then make contracts with other
states – no state has the authority to impose its legal order –
this basic structure has not changed and is still with us
❖ Established the precedent of peace reached by diplomatic
congress and a new system of political order in EU based
upon the concept of co-existing sovereign states
 Historical development
Nineteenth Century
❖ Congress of Vienna
❖ End of Napoleonic wars.
❖ New political balance of power intended to ensure stability, peace and the status
quo in Europe.
❖ It was based on sovereignty, balance of power, legitimacy (in the sense of restoration
of ‘legitimate’ governments to power and of prevention of political revolutions), and
equality between nations.
❖ Codified the law on diplomatic agents and missions.
❖ Internationalised major boundary rivers in Europe.
❖ Laid the foundations for the free navigations of rivers.
 Historical development
Nineteenth Century
❖ Congress of Vienna
❖ Concert of Europe, as a means of enforcing the decisions of the Congress of Vienna.
❖ Five powers, the UK, Austria, Prussia, Russia, and France, promised to meet periodically
over the next 20 years to discuss common problems and to co-operate on major issues to
prevent war. Concert of Europe was largely successful in preserving peace in Europe for
almost a century and it constituted the first serious attempt in modern times to establish an
international mechanism to maintain peace.
❖ Treaties regarding rules of conduct of wars and restricting human suffering during
international armed conflicts.
❖ State practice produced the framework for modern international law dealing with the
recognition of States
❖ Rules governing governing State responsibility were also developed.
 Historical development
Nineteenth Century
❖ ICRC 1863 - helped promote Geneva Conventions (1864)
❖ Hague Conventions of 1899 and 1907
❖ Created Permanent Court of Arbitration
❖ Convention with respect to the Laws and Customs
of War
❖ Publication of numerous works on International law
 Historical development
Twentieth Century
❖ WWI - undermined the foundation of International law.
❖ Treaty of Versailles 1919
❖ League of Nations
❖ International Labour Organisation 1919
❖ Permanent Court of International Justice 1921 -
succeeded by ICJ in 1945
 Historical development
Twentieth Century
❖ United Nations 1945
❖ Art 1 UN Charter
❖ To maintain international peace and security
❖ to develop friendly relations among nations based on respect
for the principle of equal rights and self-determination
❖ to achieve international cooperation in solving international
problems
 Historical development
Twentieth Century
❖ Cold War
❖ International criminal tribunals
❖ Nuremberg trials
❖ ICTY, ICTR and ICC
 Theories
Natural Law
❖ Humans, using their reason, and possibly with the help of the revelation of the God,
could come to understand how they should act rightly in respect of their fellow humans.
❖ Natural Law holds that the law is based on what’s “correct.” Natural Law is
“discovered” by humans through the use of reason and choosing between good and
evil. Therefore, Natural Law finds its power in discovering certain universal standards
in morality and ethics.
❖ Moral theory: Law should be based on morality and ethics.
❖ This presupposes an ideal system of law, founded on the nature of man as a
reasonable being.
❖ Moral principles are universal standard
❖ System of law based on human reason
 Theories
Natural Law
❖ Samuel Pufendorf – identified international law with
the law of nature.
❖ Ignored actual state practice and importance of treaties
and preferred absolute values based on natural law.
 Theories
Natural Law
❖ Criticism
❖ Finds little support in International law
❖ Method of law creation in international law is so heavily dependent on
consent or practice, it is difficult to maintain that there is some guiding
body of principles to which states refer when creating law.
❖ Principles of equity and justice have already been incorporated into law
❖ Concrete rules are derived from what states actually do.
❖ Natural law does not explain why international law is binding
 Theories
Positivism
❖ Legal positivism is the legal philosophy which argues
that all laws simply the expression of the will of
whatever authority created them. Thus, no laws can be
regarded as expressions of higher morality or higher
principles to which people can appeal when they
disagree with the laws.
❖ Law is a social construction.
 Theories
Positivism
❖ Distinguished natural law and international law
❖ Its existence as ‘law’ flows from the consent of states
❖ It is said to be ‘positivistic’ system of law based on the
actual practice of states
❖ Criticism
❖ Consent does not explain the existence of all legal
obligations.
 Theories
Fransisco Vitoria (1480 - 1546)
❖ International law was founded on principles of
universal law of nature, hence non-Europeans must be
included in it.
❖ However, he did not recognise South American
Indians as equal to Christian states of EU
❖ Just war doctrine.
 Authors
Fransisco Vitoria (1480 - 1546)
❖ Spanish conquests of South America
❖ Indians of South America must be regarded as a nation,
However, he did not recognise Indians as equal to
Christian states of EU
❖ Just war doctrine - regarded religious differences as a just
reason for war
 Authors
Alberico gentili (1552-1608)
❖ Works on laws of war and law of treaties
❖ He initiated a transformation of the law of nature from a
theological concept to a concept of secular philosophy founded on
reason
❖ His conceptualisation of just war – rejected religious indifference
as just cause of war
❖ Pre-emptive war
❖ Separation between theology and law
 Authors
Hugo Grotius (1583 - 1645)
❖ Father of international law
❖ Wrote De Jure Belli Ac Pacis (On the Law of War and Peace) – special influence till today.
❖ Separated theology and Law: Natural law would be valid even if there were no God.
❖ Law of nature based exclusively on reason. Reason wants peace – community dictates
mutual benefit
❖ Rights of Individuals - a precursor to IHRL
❖ Freedom of seas – Grotius firmly believed that no state could claim exclusive ownership
over any part of the seas, although he did acknowledge the sovereignty of coastal states.
In his view, freedom of the seas meant freedom of navigation. There is a direct link
between Grotius’ concept of freedom of the seas and the 1982 UN Convention on the Law
of the Sea.
 Authors
Vattel (1714 - 1767)
❖ Le Droit Les gens (the law of nations) – claimed to be first
international law textbook.
❖ Doctrine of the equality of states into international law,
small republic is no less sovereign than the most
powerful kingdom.
❖ Minimised the imp of natural law: laws of conscience vs
laws of action – only later were practical concern.