Nature of International law

Nature of International law and its definition

International law as law:

An un-ended debate, the basic question because every student of international starts comparing it with domestic legal system i.e. statutory laws, courts, executive body for enforcement.

·         Issue on nature

The issue seems due to the definition of law given by Prof Austin, “as a body of rules for human conduct set and enforced by a sovereign political authority”. So as per this definition international law cannot be termed as law.

The jurists in support of this concept put forward the following arguments claiming international law is not a law;

·         No political authority in international law

·         No legislative mechanism/machinery

·         No sanctions/punishments

·         No executive power

·         No judiciary

So, the main issue is defining the law itself. This definition does not cover that part of domestic law which is unwritten or customary law i.e. which exits from the beginning beside written law.

·         Criticism on Austin’s definition 

This concept has been criticized for oversimplifying the true nature of law within a society. As per Sir Federick Pollock “The existence of law presupposes the following prerequisites;

·         Community

·         Body of rules

·         Common consent

And international law satisfies these three prerequisites. There is a community (international community, includes states, international organizations and certain other non-states entities), there is also a body of rules which are binding. To some extent international law is also backed by sanctions”.

J.G Starke also criticized the Austinain concept of law. In this connection he has put forward four main arguments;

1.      In many countries system of law existed without a formal legislative authority.

2.      Customary rules of international law are now being replaced by law making treaties and conventions. Thus international legislation has come into existence.

3.      The authoritative agencies responsible for the maintenance of international intercourse do not consider international law as merely as moral code.

4.      United Nations is based on the true legality of international law.

Nature, a highly debated area:

·         National & International Society

Why international law exists? The answer is; “to regulate international society”.

International society has a long map history evolved over centuries and now converted into ‘State System”.

The issue of nature is also, because of mixing International Society with National Society. These two differs a lot, and has no similarities.

Under National Society, each nation has its own different legal systems due to different religious, cultural and civilization factors. E.g. in Hindu culture Cow slaughter is sin, whereas in Muslims it is opposite.

Therefore the development of law differs with each other National Systems. For example

·         Common Law Traditional System

·         European Civil Law System

·         Roman Law System

·         Common Wealth States and United States of America

·         Norway, Denmark, Sweden (Roman Law Traditions)

·         Islamic Legal System (considers no difference between State and Society)

·         African Legal System

·         Chinese Legal System

·         Russian Legal System

Eventually, implications of these National Society differences and unique characteristic of International Legal System generated enquiries and debates for theoretical foundation of International Law.

Then how International System developed? It can be argued here that, as International Law is for International Society and over centuries comprised practices of States developed International Law.

And why did States adopt such practices? And the answers is;

·         To reduce fractions

·         Increase Peace

·         Decrease the use of Force among them.

·         Change in subjects

International Law developed initially for International Society, and only concerned with “rights and obligations of States i.e. International Society”. All this was before League of Nations and United Nations birth. Today a lot of changes have occurred in subjects of International Law, and now it includes;

·         States

·         International Organizations, and

·         Humanism (Human Rights)

Now these three factors are considered to be heart of International Legal System and vital for the purpose of “creation, interpretations and application of International Law”.

Rethinking International Law as Law under Practical Scenarios:

This can be understand under the following practical scenarios, which are briefly, for the purpose of understanding nature of International Law, discussed hereunder;

1.      Afghan War (Terrorism Issue)

After the violent inhuman terrorist attacks on 09-11-2001, United Nations General Assembly and Security Council resolutions were passed against terrorism in all respects. United States of America consequently engaged war against Talibans. But the point to for discussion here is that United States never denies the existence of International Law, and by all means claimed to follow principles of International Law in all this scenario.

2.      Iraq War (Chemical Weapons Issue)

Colin Powel U.S secretary of State, alleged in United Nations that Iraq has violated Security Council Resolution 1441 and is creating Weapon of Mass Destruction or Chemical Weapons, which is a great threat to peace and security of world order. So the invasion in Iraq by United States and its allies was also as alleged for violation of International Law, and under the International Law.

3.      Rwanda, Sudan and Somalia (Humanitarian Law violation Issue)

In these States, International Humanitarian Law came to enforce Law of War principles under the domain of International Law. For example in response to Rwandan Genocide, ICTR (International Criminal Tribunal for Rwanda) being the first Court established to prosecute individuals responsible for massive human rights violations in Africa and Rwanda in 1999, is a fact that International Law is a true Law.

4.      Libya (Democracy through International Law)

Invasion in Libya keeping in view the UNSC Resolution 1973 against Gazafi Government for establishment of democracy and fundamental human rights in Libya, is another example of International Law is a true Law.

5.      Kashmir Issue (Right to Self-determination)

For resolving the Kashmir Issue, the United Nations Security Council Resolutions 1948 and 1949, confirming the Right to self-determination of Kashmiri people, are and basic grounds based on International Law. And the matter if and can only be solved is through the forum of International Law. Neither India nor Pakistan ever denies the existence of International Law on Kashmir Issue.

6.      Osama Bin Laden Issue

The Attorney General of United States claimed that the raid over Bin Laden’s alleged compound in Pakistan was not violation of International Law, rather it was lawful and “an act of self defence” “in manner fully consistent with laws of war”.

7.      Dr Abdul Qadeer Khan Issue

Dr. Abdul Qadeer Khan a nuclear scientist was put under sanctions by United States and its allies alleging that he commits nuclear proliferation to Iran, Libya and North Korea. Pakistan in response put him in detention in 2004 for his own safety as well. The sanctions on Dr. Qadeer was also for violation of International Treaties on nuclear proliferations.

8.      Hafiz Saeed Issue in Pakistan

On 10^th December 2008 Hafiz Saeed was placed in Al-Qaida Sanctions list under UNSC Resolution 1822 (2008) the matter is still continuous, consequently Pakistan also have placed sanctions on him under domestic law as an obligation to not violate International Law.

9.      Yemen Crisis

On 26^th March 2015 Saudi Arabia leading coalition including Bahrain, Egypt, Jordan, Kuwait, Qattar used warplane against Houthis Forces in Yemen. They claimed that the operation was not in any violation of International Law, rather it is on request of Yemeni President Abdu Rabu Mansoor Hadi who was ousted by Houthis Forces from Yemen.

10.  Marshall Islands Case

Marshall Islands filed case in International Court of Justice against nine nuclear States, including Pakistan for failing to halt the nuclear arms race. The case was rejected on a technical ground accepting Pakistan’s objection of absence of ‘dispute’ between the parties. Marshall Islands sued for enforcement of Nuclear Treaties i.e NPT CTBT.

11.  Kulbushan Jhadev Case  

On 08 May 2017 Republic of India under Article 40, of the Statute of the International Court of Justice, and Article 38 of the Rules of the Court, read along with Article 1 of the Optional Protocol concerning the Compulsory Settlement of Disputes done at Vienna 1963 initiate proceedings against Pakistan on grounds of violation of the Vienna Convention on Consular Relations, 1963 in the matter of the detention and trial of an Indian National, Mr. Kulbhushan Sudhir Jadhav which has resulted finally on 10 April 2017 in a death sentence being awarded to the said Indian National.

According to application filed by India, under ICJ, the dispute being raised arises out of the interpretation and the application of the 1963 Vienna Convention on Consular Relations and lies within the compulsory jurisdiction of this Court as provided in Article 1 of the Optional Protocol Concerning the Compulsory Settlement of Disputes. This is another example of that International Law is true Law and individuals are also subject to it.

Definition of International Law:

·         Theories

After arrived at a point that International Law is a true law, what comes next is basis of this law. Two main theories deals here, they are;

1)      Naturalist theory

Proponents of this theory adhere that the International Law is a part of the Law of Nature. Initially Law of Nature was connected with religious beliefs and had status of divine law. Hugo Grotius being one of the proponent of this theory expounded the secular concept of Law of Nature and observed that “natural law was the dictate of right reason”. So International Law was considered to be binding being a natural law applied in special circumstances. Pufendorf, Christian, Thomasius etc are prominent exponents of this theory.

·         Criticism

The meaning of the term Nature is vague, and every jurist gave it different meaning, e.g. justice, reason, utility, interest of international community. But this theory lacks to observe the practice of States and realities.  

 

2)      Positivist theory

The positivist consider the law enacted by appropriate legislative authority is binding in its nature. With regards to International Law they based their view on actual practice of States. In their view treaties and customs are the main sources of international law, and will of the States is main source of International Law. As pointed out by Brierly, “The positivism teaches that International Law is the sum of rules by which States have consented to them”. And according to proponents of this theory “International Law is body of rules which has been consented by States and accepted as binding by way of voluntary restriction or auto limitation”.

·         Criticism   

The concept of will of State is purely metaphorical, and the consent of State is basis of International Law is also far from truth.

3)      Combined effect  

Elements of both positivism and naturalism appear in the works of Vattel (1714–67), a Swiss lawyer. His Droit des Gens was based on Natural Law principles yet was practically oriented. He introduced the doctrine of the equality of states into international law, declaring that a small republic was no less a sovereign than the most powerful kingdom, just as a dwarf was as much a man as a giant. By distinguishing between laws of conscience and laws of action and stating that only the latter were of practical concern, he minimized the importance of Natural Law.

·         Present Scenario

Today these theories do not exits, as Sir Robbert Jennings observed that;

“International Law should be defined with regard to actually using and applying it”.

This may called applied approach of International Law. And today this approach can be seen in United Nations and International Court of Justice.

·         Defining Problem 

Before World War 1, there was no issue in defining International Law. Till that time, “Only the States could be subject of International Law, having the status of international legal personality with international rights and duties including the right to bring international claims for internationally wrongful acts”.

And after World War 2, there is seen an expansion in the scope of International Law, because of entrance of some new actors;

·         International Organizations

·         Transnational Corporation/Companies

·         Inter-government & non-governmental organizations

·         Indigenous people

These are international legal personalities having certain rights under the treaties. Further expansion creates more complications in defining it.

1)      Terminology Issue

It was Jeremy Bentham who first coined the word international in a book published in 1789;

“J. Bentham, An Introduction to the Principles of Morals and Legislation”.

Bentham explains in his text why he preferred to invent a new word, he suggests that it can be divided in terms of “the political quality of the persons whose conduct is the subject of the law” and he argues that “these (the persons) may ... be considered either as members of the same state, or as members of different states; in the first case, the law may be referred to the head of internal, in the second case, to that of international jurisprudence”.

The older phrase law of nations, according to Bentham, refers to a certain discursive space only through the force of custom, or convention. However, he believed that a more appropriate designation should go beyond mere convention. And Bentham explains, that international is a term that stands in no need of the mediation of custom and convention.

2)      Historical evolution of Definition

·         In the words of J.L Brierly; “The Law of Nations or International Law may defined as the body of rules and principles of action which are binding upon civilized states in their relations with one another”.

Flaw; “Civilized States”. The term is vague and furthermore International Law also deals with International Organizations and Human rights issues.

·         Oppenheim; “Law of Nations or International Law is the name for the body of customary and treaty rules which are considered legally binding by civilized States in their intercourse with each other”.

Flaw; “Legally binding”. This term is also under question that legally binding or States considered themselves to be bound by self-restriction or limitation. Furthermore in case Reparation for Injuries Suffered in the Service of the U.N. Advisory opinion I.C.J. holds that “it is now generally recognized that not only States but public international organizations have rights and duties under international law”. And today International Law not only consist of customary of conventional rules but also on general principles of law. (Article 38 of Statute of ICJ).

·         Prof. J. G. Starke has stated that; “International law consists of a system of laws, the majority of which applies to States but it also regulates activities of individuals and international organizations when it becomes the concern for the international community.”

Expansion; “international institutions or organizations and individuals” are added by Starke in the definition of International Law.

·         Vaughan Lowe; in his book “International Law, a very short introduction” 2016 tried to comprehensively define International Law as;

“International law may be described as a body of rules and principles that determine the rights and duties of states primarily in respect of their dealing with other states and the citizens of other states”.  

International Legal System & Nature:

The international system is the network of relationships existing primarily, if not exclusively, between states recognising certain common principles and ways of doing things.

·         Horizontal system

While the legal structure within all but the most primitive societies is hierarchical and authority is vertical, the international system is horizontal, consisting of over 190 independent states, all equal in legal theory (in that they all possess the characteristics of sovereignty) and recognising no one in authority over them. The law is above individuals in domestic systems, but international law only exists as between the states. Individuals only have the choice as to whether to obey the law or not. They do not create the law. That is done by specific institutions. In international law, on the other hand, it is the states themselves that create the law and obey or disobey it.

·         Sovereignty

States are the basic unit of International Society and International Law is developed to protect and maintain International Society. The question is, How it protect and maintain international society?

Through recognizing and protecting ‘sovereignty’.

Sovereignty has two limbs,

1.      All states must have legal authority in their territory.

2.      All states have equal status in international society and legal system.

United Nations Charter Article 2 (1), 2 (4), 2 (7) deals with the matter as they provides;

·         2 (1); The Organization is based on the principle of the sovereign equality of all its Members.

·         2 (4); All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

·        2 (7); Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll.

United Nations Resolution 2625 adopted on 24-Oct-1970, at 25^th anniversary of UN, with its title;

“DECLARATION ON PRINCIPLES OF INTERNATIONAL LAW CONCERNING FRIENDLY RELATIONS AND COOPERATION AMONG STATES IN ACCORDANCE WITH THE CHARTER OF THE UNITED NATIONS”.

The Declaration worked out the most authoritative and comprehensive formulation on the principle of self-determination and sovereignty of states.

The Lotus Case (France vs Turkey) 1927

Facts

A collision occurred on the high seas between a French vessel – Lotus – and a Turkish vessel – Boz-Kourt. The Boz-Kourt sank and killed eight Turkish nationals on board the Turkish vessel. The 10 survivors of the Boz-Kourt (including its captain) were taken to Turkey on board the Lotus. In Turkey, the officer on watch of the Lotus (Demons), and the captain of the Turkish ship were charged with manslaughter. Demons, a French national, was sentenced to 80 days of imprisonment and a fine. The French government protested, demanding the release of Demons or the transfer of his case to the French Courts. Turkey and France agreed to refer this dispute on the jurisdiction to the Permanent Court of International Justice (PCIJ).

Questions before the Court

Did Turkey violate international law when Turkish courts exercised jurisdiction over a crime committed by a French national, outside Turkey? If yes, should Turkey pay compensation to France?

The Court’s Decision

Turkey, by instituting criminal proceedings against Demons, did not violate international law.

Relevant Findings of the Court with regards to the Nature of International Law

The Court based this finding on the sovereign will of States. It held that:

“International law governs relations between independent States. The rules of law binding upon States therefor emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed”.  

·         International law towards becoming law

Coming back to the international system, if it is not hierarchal or vertical structure then how international law is making? The answer can be found under Article 38 (1) of Statute of ICJ, which allows ICJ to use;

1. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
2. international custom, as evidence of a general practice accepted as law;
3. the general principles of law recognized by civilized nations;
4. … Judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

United Nations itself play an important role in International Law making process, by converting Customary International Law rules into Treaties known as “codification” process. Through United Nations resolution 174 (II) adopted on 21-Nov-1947 for “ESTABLISHMENT OF AN INTERNATIONAL LAW COMMISSION”.

The purpose and object of INTERNATIONAL LAW COMMISSION as provided under Article 1 is “progressive development of International Law and its codification”. Article 15 provides, “progressive development means… preparation of draft conventions…formulation of International Law…rules…”.

Conclusion

International Law has now its legislation making process through United Nations. The Judicial Organ in shape of International Court of Justice. The sanctions or implementation authority in shape of United Nations Security Council powers. So it can be argued that International Law is a true Law inspite of its horizontal dimensions and non-hierarchal structure, is still developing for the purpose of regulation of International Society or Community.