International Law - Coursework Example

International Law International Law in simple term refers to the law binding upon between Sovereign Nations. It is a set of rules and guidelines to be followed by nations of the world to maintain law , order , equality and justice among themselves. In other words , International Law comprises a system of rules and principles that govern the interactions between Sovereign States and other institutional subjects , such as International Inter ­Governmental Organizations . International law consists of rules and principles which govern the relations and dealings of nations with each other. International Law, which is in most other countries referred to as Public International Law, concerns itself only with questions of rights between several nations or nations and the citizens or subjects of other nations. In contrast, Private International Law deals with controversies between private persons, natural or juridical, arising out of situations having significant relationship to more than one nation. In recent years the line between public and private international law have became increasingly uncertain. Issues of private international law may also implicate issues of public international law, and many matters of private international law nave substantial significance for the international community of nations. International Law includes the basic, classic concepts of law in national legal systems - status, property, obligation, and tort (or delict). It also includes substantive law, procedure, process and remedies. International Law is rooted in acceptance by the nation states which constitute the system. Customary law and Conventional law are primary sources of international law. Customary international law results when states follow certain practices generally and consistently out of a sense of legal obligation. Recently the customary law was codified in the ‘ ‘Vienna Convention on the Law of Treaties’ (http://fletcher.tufts.edu/multi/texts/BH538.txt). Conventional international law derives from international agreements and may take any form that the contracting parties agree upon. Agreements may be made in respect to any matter except to the extent that the agreement conflicts with the rules of international law incorporating basic standards of international conduct or the obligations of a member state under the ‘Charter of the United Nations’ (http://www.unhchr.ch/html/menu3/b/ch-cont.htm). International agreements create law for the parties of the agreement. They may also lead to the creation of customary international law when they are intended for adherence generally and are in fact widely accepted. Customary law and law made by international agreement have equal authority as international law. Parties may assign higher priority to one of the sources by agreement. However, some rules of international law are recognized by international community as peremptory, permitting no derogation. Such rules can be changed or modified only by a subsequent peremptory norm of international law. The aim of international law is to monitor the behavior between states since where there exists a community of states, the maintaining of law and order becomes essential. A state will, as a general rule, do its utmost to act within the confines of the framework of rules which make up international law. Any state disregarding these general principles of peaceful and cooperative cohabitation between states runs the risk of incurring the disapproval of the fellow states in the community. Such disapproval will hardly ever limit itself to a ‘tag’ of bad reputation, but could even lead to severe consequences. Several Jurists are still skeptical about the status of International law as ‘true’ law as they opine that international law exhibits the characteristics of ‘ flexibility and indeterminacy’. Often it is observed that ‘ the key to understanding International Law is the notion of constructive indeterminacy’. ‘ International Law is normally observed as above because the demands that it makes on States are generally not exacting, and on the whole, States find it convenient to observe it.’ –Brierly The above argument against international law is justified by the following distinctive features which are inconsistent with the Municipal / Local law. 1. Voluntary compliance by States 2. States are not adhered to the Principals of Equality 3. It lacks substantive content 4. It fails positive tests for true law 5. Inconsistency in the interpretation and application of international law by various National / Municipal courts 6. State immunity from jurisdiction : ‘No State can be sued in the courts of another country for acts performed in its sovereign capacity.’ 7. Immunity from state Agencies : ‘Should an individual break the law of another State while acting as an agent for his country of origin and be brought before that States court, he is not held guilty because he did not act as a private individual but as the representative of the State’. The recent acquittal of Nigerian Diplomatic envoy who was transporting 10 crores of hard cash from Indira Gandhi International Airport , New Delhi to Nigeria is an example of misuse of state power by individuals. 8. State Centrism : International law is a ‘law between States only and exclusively’ - Oppenheim . No guaranteed recognition / enforcement of International Law within domestic space. 9. The most important argument against International law is that it lacks effective international enforcement mechanisms. Its acceptance level is dependent on a states acceptance to be subject to the enforcement of laws. States must be willing to subject themselves into the international legal process. In international law, there is no single enforcement mechanism, which sometimes causes individuals to question the validity of international law. They question whether international law is a fundamental requirement of a modern, increasingly independent, global system of states and non-state actors. They question whether international law hinders and constrains them to pursue their self-interest. The recent Iraq War and the improper handling of the situation by US President George Bush by neglecting and ignoring the welfare of Iraqi Nationals for personal vengeance is the live example of ineffectiveness and helplessness of International law and its frequent abuse by mighty nations of the world. In the above context, John Austin’s assertion that ‘ International law is law improperly so called ’ seems significant. Austin went on to say that ‘International Law can only be developed through the collective action of States themselves . The development and enforcement of International Law ultimately depends on the Political will of Sovereign States’. International public order : In spite of the above arguments, in modern times, because of globalism, international law is a fundamental requirement for international relations. According to Fitzmaurice , ‘The real foundation of the authority of international law resides in the fact that States making up the international society recognize it as binding upon them, as a system that ipso facto binds them as members of the society, irrespective of their individual wills.’ Brierly supports the above argument - ‘ If... the only essential condition for the existence of law is the existence of a political community, and the recognition by its members of settled rules binding upon them in that capacity, international law seems on the whole to satisfy these conditions ’. International Law is ‘real’ but on the basis of its purpose and function, rather than on its origins. Brierly further said that ‘ the primary purpose of International Law is not to command or to coerce states, but to enable them to interact freely by laying down orderly, predictable, and binding principles The reality of International Law is inseparable from the effective functioning of International Public Order. The best evidence for the existence of international law is that every actual state recognizes that it does exist and that it is itself under an obligation to observe it. States may often violate international law, just as individuals often violate municipal law, but no more than individuals do states defend their violations by claiming that they are above the law.’ According to Morgenthau , ‘The great majority of the rules of international law are generally observed by all nations without actual compulsion, for it is generally in the interest of all nations to honor their obligations under International Law. Thus the great majority of rules of international law are generally unaffected by the weakness of its system of enforcement, for Voluntary Compliance prevents the problem of enforcement from arising altogether.’ Dixon says ‘ It may be that the judicial origin of international law lies in practical necessity. It can be argued that law is the hallmark of any political community which intends to act for the common good. Law is necessary for the society to function and, because it is necessary, it is a hypothesis binding. Therefore, because international society is a community of interacting and interdependent states, it also needs rules governing its life. These are the rules of international law which provide a set of stable, orderly, and predictable principles by which the society can operate.’ From the above , it can be observed that international law has become indispensable to maintain peace and harmony between nations. Further , international law is empowered by the following enforcement mechanisms for its effective functioning . 1. Sanctions – Military and Economic : The Security Council may impose Military and Economic sanction against transgressive States . Further , the GATT , WTO , EU ,OAS, Regional Bodies , individual States can also impose economic sanctions against faulty nations. (the United Nations Charter/UNC--Harris, Appendix I) 2. Supra Sanction – The concerned country may be expelled from the international community. 3. Counter-Measure s/ Retrogression - The wrongfulness of an act of a State not in conformity with an obligation of that State towards another State is precluded if the act constitutes a measure legitimate under international law against that other State, in consequence of an internationally wrongful act of that other State. 4. Multi-Lateralism - ‘All normal Governments employ experts to provide routine and other advice on matters of international law and constantly define their relations with other States in terms of International Law. The evidence is that reference to International Law has been a part of the normal part of decision-making. The Law delimits the competence of States...The Law also provides tools for the constructing international institutions’.(Brownlie) 5. The Law Habit : ‘Law has a self-perpetuating quality. When it is accepted that the principles governing the activities of a society amount to law, as is the case with States and international law, the rules of that system assume a validity and force all of their own. There is, in other words, a psychological barrier against breaking international law simply because it is law. The psychological force of international rules as a system of law is a reason in itself why international law is obeyed’. - Harris, pp.6-8 "The Psychological Rubicon" (Dixon) 6. Ristriction on States’ jurisdiction : ‘ The first and foremost restriction imposed by international law upon a State is that –‘ failing a permissive rule to the contrary , it may not exercise its power in any form in the territory of another state’.- The Lotus Case (1927) [Harris, pp. 267–80] 7. International organizations: International Law functions through United Nations, Security Counsil , International Court of justice, International Labor Organisation , General Assembly, Internationl law Commission etc. These Organizations are represented by eminent persons of member nations who works for Global welfare. 7. Sources of International law : The international law rulings are based on the following : i. International custom/ customary law, as evidence of a general practice accepted as law; ii. the general principles of law recognized by civilized nations; iii. Judicial decisions , subject to the provisions of Article 59, and the teachings of the most highly qualified publicists of the various nations iv. International Conventions and Treaties: e.g. . Vienna Convention v. International Conference Agreements: e.g. the Rio Declaration (1985) Conclusion : Though Iraq’s invasion by US (2003) or 9/11 (2001) attack on the US by Al - Quida can question the authority of United Nations and relevance of international law, in the larger perceptive, international law is still valid in the interest of International public order.In the absence of International Law, the whole world would have become a ‘ War Ground’ wherein, the weak nations would have become ‘puppets’ in the hands of mighty nations. As such, John Austin’s assertion that ‘ International law is law improperly so called’ may not be applicable in the present world scenario. However , international law can be more effective if it adopts the fundamental features of law .As Brownlie rightly said ‘ If international law is to be accepted as a system of law, pursuant to International Public Order, it must incorporate those procedural and administrative rules which are inherent in the concept of every legal system and, therefore, part of the law of every State. These are principles which must form part of international law precisely because it is an internationally-ordered system of law.’ . ====================================================== 2. ‘ The one thing that we can say with certainty about International Law is that the States of the world have clearly evidenced an intent to enter into an effective international legal order, and order that is a genuinely legal one and not merely a political one’ . Though the opinions are divided about the importance and effectiveness of international law, there is no doubt that the states of the world desperately wanted an international world order for the promotion of international peace and security. As such, as a first step to promote international peace and harmony , after the end of World War I , the League of Nations (former international organization) was established by ‘ Paris Peace Conference’ in 1919–1920 .The Leagues goals included disarmament, preventing war through collective security, settling disputes between countries through negotiation, diplomacy and improving global welfare. The diplomatic philosophy behind the League represented a fundamental shift in thought from the preceding hundred years. However , the League lacked an armed force of its own and so depended on the Great Powers to enforce its resolutions, keep to economic sanctions which the League ordered, or provide an army, when needed, for the League to use. However, they were often very reluctant to do so. Benito Mussolini stated that "The League is very well when sparrows shout, but no good at all when eagles fall out." After a number of notable successes and some early failures in the 1920s, the League ultimately proved incapable of preventing aggression by the Axis Powers in the 1930s. The onset of the Second World War suggested that the League had failed in its primary purpose — to avoid any future world war. As World War II drew to a close, the victorious Allies sought a global organization that would protect peace, provide a forum for international discussion and promote freedom around the world. That led to the formation of the United Nations in 1945. The United Nations (UN) is an international organization whose stated aims are to facilitate cooperation in international law, international security, economic development, social progress and human rights issues. The United Nations was founded in 1945 to replace the League of Nations, in the hope that it would intervene in conflicts between nations and thereby avoid war. The organization began with fifty countries signing the United Nations Charter. The organizations structure still reflects in some ways the circumstances of its founding. The five permanent members of the UN Security Council, each of which has veto power on any Security Council resolution, are the main victors of World War II or their successor states (alphabetical order): the Peoples Republic of China (which replaced the Republic of China in 1971); France; Russia (which replaced the Soviet Union in 1991); the United Kingdom; and the United States. There are currently 192 United Nations member states , encompassing almost every recognized independent state. From its headquarters in New York City, the UN and its specialized agencies decide on substantive and administrative issues in regular meetings held throughout each year. The organization is divided into administrative bodies, including the General Assembly, Security Council, Economic and Social Council, Secretariat, and the International Court of Justice (ICJ). Additional bodies deal with the governance of all other UN System agencies, such as the World Health Organization (WHO) and United Nations Childrens Fund (UNICEF). UN Charter (1945) : “ We the Peoples of the United Nations... United for a Better World" As a Charter, it is a constituent treaty, and all members are bound by its articles. Furthermore, the Charter states that obligations to the United Nations prevail over all other treaty obligations. The United Nations Charter is the treaty that forms and establishes the international organization called the United Nations. While this document is often misconstrued as a constitution it is, in fact, an agreement between states and not a compact among the individual peoples to create a government. It was signed at the United Nations Conference on International Organization in San Francisco, California, United States, in 1945, by 50 of the 51 original member countries (Poland, the other original member, which was not represented at the conference, signed it later). It entered into force on October 24, 1945, after being ratified by the five permanent members of the Security Council—the Republic of China (later replaced by the Peoples Republic of China), France, the Union of Soviet Socialist Republics (later replaced by the Russian Federation), the United Kingdom, and the United States—and a majority of the other signatories. ‘ The main aim of International Law is to lay down such rules and suggest such measures as might tend to diminish the evils of war and finally to extinguish war among nations’ . The law of Treaties : ‘The law of treaties is the name given to that body of international law which deals with the procedural and substantive rules governing the use of treaties as a source of international law.’ The instrument will be a treaty so long as it is intended to be legally binding in the sense of creating rights and duties enforceable under international law. And this is to be judged objectively according to the nature and content of the agreement and the circumstances in which it was concluded ’ - (Brownlie) Generally, a ‘treaty’ can be regarded as a legally binding agreement deliberately created by, and between, two or more subjects of international law who are recognized as having a Treaty making capacity. A treaty is an instrument governed by international law and, once it enters into force, the parties thereto have legally binding obligations in international law.’ (Dixon) Nuclear Tests case : Legal Status of Eastern Greenland (Denmark v Norway) (1933) – ‘ It is well recognized that declarations made by way of unilateral acts concerning legal or factual situations, may have the effect of creating legal obligations’. However ,there must be a clear intent by the state to be bound by the statement. Vienna Convention on the Law of Treaties (1969) : The Vienna Convention discussed the following: i. State Exclusivity – the treaty is between states and governed by international law ii. State authority to conclude a treaty : The doctrine of full powers to state (Art.7) iii. Codification of Customary law iv. Entry into force v. Third States : ‘ Agreements are not prejudicial to third parties and do not benefit them ‘. A treaty does not create either obligations or rights for a third state without its consent (Art.34). vi. Amendment and modification (Art. 39 – 41) vii. Termination (Art. 54 – 59 ) Jurisdiction : ‘ The parameters of lawful exercises of State Sovereignty within International Public Order’. ‘The first and foremost restriction imposed by international law upon a State is that – failing a permissive rule to the contrary ’ . The Lotus case (1927) [Harris, pp. 267–80] International Legal Personality : ‘The classical definition of a subject of international law is that it is an entity capable of possessing rights and duties under international law and having the capacity to maintain its rights by making international claims’. (Brownlie) ‘ The most important point about international personality… is that it is not an absolute concept. International personality operates as if on a sliding scale, with various subjects of international law having various capacities for particular purposes.’ (Dixon) Features : i. The ability to make legal claims before international tribunals and national courts; ii. Subject to some or all of the obligations and liabilities recognized by International law; iii. Power to enter into binding international agreements iv. Some degree of judicial immunity from Municipal Courts , both domestic and foreign State Responsibility : ‘The International Rule of Law requires the effective implementation of the system of State Responsibility and such effective implementation calls for the identification of the types of legal interest to be given protection. The law of international claims is concerned with the definition of legal interest and the other conditions of the admissibility of claims’.( Brownlie) Conclusion : From the above discussion , and by referring various articles of International law as mentioned above we can assume the scope, significance and powers of international law. The states are voluntarily observing the rules and guidelines framed by international law in the interest of world peace and international public order. In this context, World‘s welfare matters more than personal , regional or political motives. International legal order can be implemented only through strict adherence to the provisions of international law by nations of the world. -------0------- Bibliography : Main sources : Harris, pp.6-8 The Psychological Rubicon The ILC Draft Articles on State Responsibility (1996) [Harris, pp. 485–519] Art. 38 of the Statute of the International Court of Justice/ICJ Harris, p.1075 Sources of International Law LSO: The Lotus Case (1927)--Harris, pp.267-280 The Vienna Convention-- Art.27--Harris, p.807,Art.46--Harris, pp.827-28 The Vienna Convention on Diplomatic Relations (1961) [Harris, pp. 340–57] The United Nations Charter/UNC--Harris, Appendix I, pp.1048-79 Secondary sources Read More