Introduction ————————————————- International law, body of rules considered legally binding in the relations between national states, also known as the law of nations. It is sometimes called public international law in contrast to private international law (or conflict of laws), which regulates private legal affairs affected by more than one jurisdiction. ————————————————- ————————————————-
Nature and Scope ————————————————- International 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 by the genocide convention, and by the Declaration of Human Rights.
————————————————- Evolution of International Law Beginnings There was little scope for an international law in the period of ancient and medieval empires, and its modern beginnings coincide, therefore, with the rise of national states after the Middle Ages. Rules of maritime intercourse and rules respecting diplomatic agents (see diplomatic service) soon came into existence.
At the beginning of the 17th cent. , the great multitude of small independent states, which were finding international lawlessness intolerable, prepared the way for the favorable reception given to the De jure belli ac pacis [concerning the law of war and peace] (1625) of Hugo Grotius, the first comprehensive formulation of international law. Though not formally accepted by any nation, his opinions and observations were afterward regularly consulted, and they often served as a basis for reaching agreement in international disputes.
The most significant principle he enunciated was the notion of sovereignty and legal equality of all states. Other important writers on international law were Cornelius van Bynkershoek, Georg F. von Martens, Christian von Wolff, and Emerich Vattel. Development to World War I The growth of international law came largely through treaties concluded among states accepted as members of the “family of nations,” which first included the states of Western Europe, then the states of the New World, and, finally, the states of Asia and other parts of the world.
The United States contributed much to the laws of neutrality and aided in securing recognition of the doctrine of freedom of the seas (see seas, freedom of the). The provisions of international law were ignored in the Napoleonic period, but the Congress of Vienna (see Vienna, Congress of) reestablished and added much, particularly in respect to international rivers and the classification and treatment of diplomatic agents. The Declaration of Paris (see Paris, Declaration of) abolished privateering, drew up rules of contraband, and stipulated rules of blockade.
The Geneva Convention (1864) provided for more humane treatment of the wounded. The last quarter of the 19th cent. saw many international conventions concerning prisoners of war, communication, collision and salvage at sea, protection of migrating bird and sea life, and suppression of prostitution. Resort to arbitration of disputes became more frequent. The lawmaking conventions of the Hague Conferences represent the chief development of international law before World War I.
The Declaration of London (see London, Declaration of) contained a convention of prize law, which, although not ratified, is usually followed. At the Pan-American Congresses, many lawmaking agreements affecting the Western Hemisphere have been signed. Effect of the World Wars In World War I, no strong nations remained on the sidelines to give effective backing to international law, and the concept of third party arbitration was again endangered; many of the standing provisions of international law were violated.
New modes of warfare presented new problems in the laws of war, but attempts after the war to effect disarmament and to prohibit certain types of weapons (see war, laws of) failed, as the outbreak and course of World War II showed. The end of hostilities in 1945 saw the world again faced with grave international problems, including rectification of boundaries, care of refugees, and administration of the territory of the defeated enemy (see trusteeship, territorial).
The inadequacy of the League of Nations and of such idealistic renunciations of war as the Kellogg-Briand Pact led to the formation of the United Nations as a body capable of compelling obedience to international law and maintaining peace. After World War II, a notable advance in international law was the definition and punishment of war crimes. Attempts at a general codification of international law, however, proceeded slowly under the International Law Commission established in 1947 by the United Nations. Recent Developments
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 treaty (1982, in force from 1994) 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. Codification of International Law: Introduction International Law as such has been subject to multifold criticism on various diverse and terse grounds. On of these grounds has been that it lacks sanction, as in terms of Austin, which every law emanating from a sovereign inherently possesses.
Nevertheless, despite being christened as a weak law, International Law as grown by leaps and bounds and has acquired binding sanction through jus cogens, erga omnis obligations and other sanctions being imposed by the international community against the violators of international law. Today the codification and progressive development of international law is broadly accepted as being an important task of states and the specific “legislative” process of the contemporary international community. Codification of International Law.
Meaning of Codification The term codification ordinarily implies the process of reducing the generally existing principles of a branch of law into a Code capable of enactment and reference. Therefore it connotes a systematic arrangement of the hitherto existing diverse rules spread over a plethora of judicial decisions and juristic opinions. Thus codification does not give birth to rules or principles of a branch of law but only assists to consolidate, compile or give shape to the existing rules of a particular branch of law or in general.
The famous Justinian Code, German Code, Manu Code etc. are quintessential illustrations to this fact in municipal jurisdictions. However the situation was quiet different in International Law. It was not because of the fact that International Law required some more than this from what we generally understand by codification but because it was a difficult exercise to consolidate these generally prevailing notions of international rules into a generally acceptable code. International Law and Codification: Different Perspectives:
Various Jurists understand the meaning and scope of ‘codification of international law’ in different perspectives: while some attribute a narrow significance to it, according to others codification of international law is of wide horizon. Narrow Outlook: Giving a narrow meaning to the term ‘codification’, Sir H. Lauterpacht holds, “the task of codifying international law, if it is to mean anything, must be primarily one of bringing about an agreed body of rules already covered by customary or conventional agreement of State.
” Thus one shall find that according to this view, the ‘codification of international law’ only means giving a written form to the hitherto unwritten rules/principles of international law. It does not involve prospective thinking nor does it allow the invocation of any modification or amending exercise to the existing rules Wider Outlook: However adopting a wider outlook, wherein codification also involves the modification of existing rules of international law, so as to keep up with the changed times and also provide for the developing concepts.
Giving a largely traditional view, however, Oppenheim holds that codification in respect to international law implies a twofold process. (i) Process of translating into statutes or conventions, customary law and rules arising from judicial decisions, (ii) Process of securing, by means of a general convention, agreement among states upon certain topics of international law. He holds, however, that in relation to international law the two aspects are in practice inseparable and further, there is no clear borderline between codes and ordinary multilateral conventions.
Thus even Oppenheim does by far agrees with the traditional or the narrow view, though the second part may well be broad be enough to include the aspect of modifying the already existing concepts by securing agreement between the states on such lines. Stages of Codification: The entire exercise of codification of international law can be viewed under different stages. This distinction between stages has been made on the basis of the parent or supporting organization under whose aegis the codification exercise was undertaken On this basis the codification exercise can be chronologically understood as below.
(i) Contribution of Bentham: The history of codification of international law dates back to the end of 18th century when the idea of codification of international law was conceived by Bentham. Before him an unsuccessful attempt was made by the French Convention to draw up a declaration of the Rights of Nations in 1792. (ii) Foundation Institute of International Law: The actual beginning of the codification process can be traced back to 1873 when the Institute of International Law was founded at Ghent in Belgium with one of the aims to codify the existing principles of international law.
(iii) The First Hague Conference convened by Russian Emperor Nicholas II in 1899, which resulted into two conventions in the form of code (namely, (a) Convention on the Pacific Settlement of International Disputes, and (b) Convention on the Laws of Customs of War on Land) and then the Second Hague Convention of 1907, which resulted into thirteen conventions were one of the major codification exercises undertaken at that time. (iv) The League of Nations:
Thereon a lot of codification work was undertaken under the aegis of the League of Nations. In fact Oppenheim has noted that “it was left to the League of Nations to approach in a systematic manner the problem of codification properly called. ” The League Council appointed a Committee of sixteen jurists in 1924 to report to the Council, subjects which were ripe for codification. Thereon the Committee reported seven subjects for codification and further in 1928 reported two more subjects for codification.
(v) Codification under the United Nations: Article 13(1)(a) of the UN Charter lays down that the General Assembly shall initiate studies and make recommendations for the purpose of ‘promoting international co-operation in the political field’ and ‘encouraging the progressive development of international law and its codification’. Thus it may be noted that the aim to codify international law was not only existing but also found its place in the fundamental document establishing the United Nations i. e. the UN Charter itself.
Considering the urgency of the situation and its importance, the General Assembly acted quickly and on December 11th, 1946, it appointed a committee for the progressive development of International law and its codification. Further, following this mandate of Article 13, the General Assembly established the International Law Commission (ILC) in 1947. 23 This ILC first met on April 11th, 1949. 24 Owing to the enormity of the contribution of ILC towards the codification and progressive development of international law.
vi) ILC and Codification of International Law: The establishment of ILC brought out a turning point in the ‘codification movement’ i. e. the movement for the systematic presentation of international law in the form of written rules representing a restatement of existing rules of international customary law or the formulation of the new ones. 26 Originally in 1949, the three subjects on the priority list of ILC were, (a) Law of Treaties, (b) Arbitral Procedure, and (c) Law Relating to High Seas.
By 1971, the Commission had submitted final drafts/ reports on diverse issues. Besides working on these specific issues, ILC has been incumbent into publishing the Year Book of International Law (YBIL) while also been instrumental in publishing the Further, following this mandate of Article 13, the General Assembly established the International Law Commission (ILC) in 1947. 23 This ILC first met on April 11th, 1949.
Owing to the enormity of the contribution of ILC towards the codification and progressive development of international law, it is advisable to discuss its contribution separately. The importance of the work of ILC can be summerised in the words of Lauterpacht who states, “the texts prepared by the Commission are, in terms of the rules about sources of international law in Article 38(1)(c) as under the Statute of International Court of Justice are atleast in the category of writings of the more qualified publicists.
” Conclusion It is true that the absence of codified rules has not seriously impeded the work of the International Court of Justice or of the other tribunals, and that, on the contrary, their work has shown that International Law may be developed indirectly and given a degree of certainty through decisions of international tribunals.
But there is no doubt that the codification of suitable proportions of international law may add both to its clarity and authority and, to a smaller extent, to the willingness of states to submit disputes to obligatory judicial or arbitral settlement. Scope of International Law: International law is the body of rules that governs the conduct of STATES and other international associations, such as the UN, although in the human rights area international law, in some instances, may be directly applicable to individuals as well as to states.
Modern international law has its origins in 16th- and 17th-century Europe. Created to regulate relations among a few states with common religious backgrounds and common commercial interests, international law has developed from a system that sought merely to secure peaceful co-existence within the international community to a system that seeks to protect the common interests and achieve the common aims of states. Scope:
International 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. Today, every country depends on international law for the daily function of most of its institutions. International standards heavily influence employment, labor protection, health, criminal justice, children’s rights, fair trial, privacy, environmental protection, and domestic laws.
So the scope of international law is very extensive, covering laws pertaining to war, recognition of governments and states, LAW OF THE SEA, AIR LAW AND SPACE LAW, international obligations, treaties), INTERNATIONAL ECONOMICS, international political and economic institutions, HUMAN RIGHTS and dispute resolution. Since the inclusion in the international community of nations at varying stages of economic development, issues related to economic justice have begun to play a significant role in international law. Law of War or the law of armed conflict:
Many great wars caused the evolution of the rules and discipline of international law. Modern international law first took shape in 1625 during the 30 years war when Hugo Grotius, a Dutch diplomat, produced his great work, ‘On the Law of War and Peace’. Armed conflict is as old as humankind itself. There have always been customary practices in war, but only in the last 150 years have States made international rules to limit the effects of armed conflict for humanitarian reasons. The Geneva Conventions and the Hague Conventions are the main examples.
Usually called international humanitarian law (IHL), it is also known as the law of war or the law of armed conflict. It aims to protect persons who are not or are no longer taking part in hostilities, the sick and wounded, prisoners and civilians, and to define the rights and obligations of the parties to a conflict in the conduct of hostilities. Because it is law, IHL imposes obligations on those engaged in armed conflict. Not only must they respect the law, they have an obligation to ensure respect as well. It is not acceptable to turn a blind eye.
Modern laws of war address declarations of war, acceptance of surrender and the treatment of prisoners of war; military necessity, along with distinction and proportionality; and the prohibition of certain weapons that may cause unnecessary suffering. Law of the Sea,: One of the first subjects of International Law and one of Grotius main points is still a hot topic: which continually evolves. Law of the Sea for about 300 years, was to a large extent determined by principles of customary law. How far from shore a country’s territory extends has been debated for centuries.
By the eighteenth century, three miles from shores was defined as a country’s territorial limit. Anything beyond that was considered international waters. In 1967, in response to a perceived need for change in the law of the seas, the UNITED NATIONS began complex and painstaking multilateral negotiations. After many years of negotiation, a UN Convention on the Law of the Sea (UNCLOS) covering territorial limits, EEZs, military uses, piracy environmental pollution and many other points was concluded in 1982. Peace: International law governs relations between states.
It provides the basis for peace and stability and aims to protect and ensure the wellbeing of humankind. International law encompasses the various fields, including the prohibition of the use of force: States must resolve their differences by peaceful means. International law underpins and helps to achieve the conditions of peace and security between states. A wide range of laws and treaties such as anti-terrorist laws, arms control laws and measures prohibit the use of force. Under the UN Charter, the Security Council has primary responsibility for the maintenance of international peace and security.
The Security Council takes the lead in determining the existence of a threat to the peace or act of aggression. It calls upon the parties to a dispute to settle it by peaceful means and recommends methods of adjustment or terms of settlement. In some cases, the Security Council can resort to imposing sanctions or even authorize the use of force to maintain or restore international peace and security. Also measures of collective security have been adopted by the international community to maintain the environment of peace and security among states.
Collective Security: The term “collective security” has been cited as a principle of the United Nations, and the League of Nations before that. By employing a system of collective security, the UN hopes to dissuade any member state from acting in a manner likely to threaten peace, thereby avoiding any conflict. Collective Security is achieved by setting up an international cooperative organisation, under the auspices of international law and this gives rise to a form of international collective governance, albeit limited in scope and effectiveness.
Recognition of governments and states: International law is constituted by States and it is generally concerning the activities and the transactions of States. As Warbrick says “International law….. has something to do with States”. Fifty years ago it was generally admitted that “States are the only legal persons of the international law”, but today conception is rather different, the participants can be regarded as; states, international organisations, regional organisations, non-governmental organisations, public companies, private companies and individuals.
1International law states that, an entity which meets the international legal criteria of statehood is able to be a State. And the Article 1 of the Montevideo Convention on Rights and Duties of States provides the criteria of the statehood. According the Convention a state should have; a) a permanent population b) a defined territory c) government and d) capacity to enter into relations with other states. Human Rights: International human rights law refers to the body of international law designed to promote and protect human rights at the international, regional and domestic levels.
The General Assembly of the United Nations adopted the Vienna Declaration and Programme of Action in 1993 by which the United Nations High Commissioner for Human Rights was established. And in 2006, the United Nations Commission on Human Rights was replaced by the United Nations Human Rights Council for enforcement of international human rights law. The Universal Declaration of Human Rights is generally agreed to be the foundation of international human rights law.
Adopted in 1948, the UDHR has inspired a rich body of legally binding international human rights treaties. It continues to be an inspiration to us all whether in addressing injustices, in times of conflicts, in societies suffering repression, and in our efforts towards achieving universal enjoyment of human rights. The International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights entered into force in 1976.
The two Covenants have developed most of the rights already enshrined in the UDHR, making them effectively binding on States that have ratified them. The body of international human rights law continues to grow, evolve, and further elaborate the fundamental rights and freedoms contained in the International Bill of Human Rights, addressing concerns such as racial discrimination, torture, enforced disappearances, disabilities, and the rights of women, children, migrants, minorities, and indigenous peoples.
Environment Law: Environmental law is a collective term describing international treaties (conventions), statutes, regulations, and common law or national legislation (where applicable) that operates to regulate the interaction of humanity and the natural environment, toward the purpose of reducing the impacts of human activity. Pollution, scarce resources, wild animals and plants do not respect political boundaries, making treaties an important aspect of environmental law.
Numerous legally binding international agreements now encompass a wide variety of issue-areas, from terrestrial, marine and atmospheric pollution through to wildlife and biodiversity protection. The most widely known protocol in international environmental law is the Kyoto Protocol, which followed from the United Nations Framework Convention on Climate Change. International Trade Laws: International trade law includes the appropriate rules and customs for handling trade between countries.
International trade law should be distinguished from the broader field of international economic law. The latter could be said to encompass not only WTO law, but also law governing the international monetary system and currency regulation, as well as the law of international development. Modern trade law (extending beyond bilateral treaties) began shortly after the Second World War, with the negotiation of a multilateral treaty to deal with trade in goods: the General Agreement on Tariffs and Trade (GATT).
The GATT has been the backbone of international trade law throughout most of the twentieth century. It contains rules relating to “unfair” trading practices — dumping and subsidies. In 1995, the World Trade Organization, a formal international organization to regulate trade, was established. It is the most important development in the history of international trade law. International trade law is based on theories of economic liberalism developed in Europe and later the United States from the 18th century onwards.