An overview of international law
Introduction;
Today in globalized world states
cannot become self-sufficient so they have to interact with each other e.g. in
trade, security, health, travel etc. these interactions create the need for a
body of rule or principles to be obeyed by the all states as a law.[1] Historically from cave to
civilization man always ruled by a common notion of law[2], extending this notion
from man to state, states also requires to be rule by some principles, rules,
or laws. Law has the characteristics of binding in nature, and these are either
permissive i.e. allowing to create a contract or coercive i.e. to punish those
who infringes it[3].
To interact with each states requires for some universal international law.[4]
International law itself is divided
into conflict of laws or private international law and public international law
which is usually termed as international law. The former deals with particular
legal systems in which foreign elements i.e. application of foreign law, raised[5], or otherwise it mainly
concerns with such matters between individuals as fall at the same time under
the jurisdiction of two or more different states.[6] Whereas public
international law covers relations between states in all aspects.[7]
The main object of international law
is to produce an order rather than just a system of international relations.[8]
Nature of International Law, whether international law is or is not law;
It is the legal quality of
international law that is the first question to be posed. Eventually every
student of international law starts comparing it with domestic law e.g.
recognized body to create law or legislature, courts, and system of enforcing
those laws.[9]
‘‘what is law?’’. Asking
whether international law is ‘‘law’’ presumes national law as the benchmark.
But this blinkered definition limits the term ‘‘law’’ to a historical blink of
the eye, to certain Post- Westphalian systems.[10]
This is from the beginning that
such question arises whether international law is legally binding or not. Prof Hobbes and Pufendorf answered the question in negative. This 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.[11] 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[12]
This concept has been criticized for oversimplifying the
true nature of law within a society.[13]
Since International Law has not grown up in this way, in fact, cannot grow in
this way, because there is no superior whether individual or sovereignty or
court which is in a position to lay down the law and be listened to[14] therefore
it can be argued that this definition of law is not correct, because it does
not cover that part of domestic law which is unwritten or customary law i.e.
which exits from the beginning beside written law.[15] Oppenhiem
defines law “is a body of rules for
human conduct within a community which by common consent of this community
shall be enforced by external power”. So it is not an essential as per this
definition for a law to be in written form.[16]
As pointed out by 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”.[17]
As regards to the first condition
it is necessary to define the community. “A
community may be said to be the body of a number of individuals more or less
bound together through such common interests as create constant and manifold
intercourse between the single individuals”. This definition covers not
only individuals but also states as a community.[18]
With regards to second requisite
for hundreds of years the customary rules have grown up for the conduct of
states between each other. But side by side these customary rules many written
rules are daily created by international agreements such as the Declaration of
Paris 1856 and VCLT 1969 etc.[19]
With regards to the third
prerequisite, consent of states are regarded as the basis for obligations in
international law.[20] Common consent with
regards to law means every individual must at every moment of their existence
consent to every point of law, but such consent can never be proved. The
customary rules of international law have grown up by the common consent of the
states. Single usage grown when many states started acting in the same manner
on a similar occasion[21] and they (usage) with the
passage of time turned into customs.
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.[22]
Thus the term law is of relatively
subordinate in importance. International law will remain same whether it is
called law or law not. All what needs to establish is that the existence of
certain rules of law for states, is sufficient to convince it is real law.[23]
Furthermore although there is no
unified system of sanctions in international law but within United Nations
sanctions may be imposed by the Security Council upon the determination of
threat to peace or an act of aggression, for example in 1990 against Iraq.
Since one cannot discover the true nature of international law upon the
definition of law predicated upon sanctions, the character of the international
legal order has to be examined on the fact that whether states feel obliged to
obey the rules of international law or not.[24]
And although the legal structure is
hierarchical and authority is vertical, but in international system it is
horizontal consisting over 190 independent states. In domestic system law is
about individuals but international law only exists between states not between
individuals, rather they do have choice as to whether to obey the law or not.
Despite violations of international
law by states, the vast majority provisions of international law are followed.[25] And states do not deny
the existence of international rather they try to justify their conduct and
affirm the binding nature of rules of international law.[26] As pointed out by prof H.L.A. Hart “breaches of rules expose the offender
to serious criticism and are held to justify claims for compensation and
relation. These are surely all elements…that there exist among states rules
imposing legal obligations upon them”.[27]
The arguments of the jurists who regard international
law as really law may summed up as follows;
·
The term law cannot be limited to rules of conduct
enacted by a sovereign authority. Sir Henry
Maine established that in primitive societies there was no authority yet
there were laws.
·
Austinian concept of law fails to justify customary
law.
·
Customary rules of international law are now being
replaced by international treaties and conventions.
·
States do not deny the existence of international law.
·
In some states international law is treated as part of
their own law e.g. U.K and U.S.A. Justice Gray
observed in Paquete Habanna[28]
“international law is part of our law and
must be ascertained and administered by Courts of justice…as often as question
of right depending upon it are duly presented for their determination”.
·
International Court of Justice decide disputes as are
submitted to it in accordance with international law. And its decision are
binding upon the parties to dispute.
·
The United Nations is based upon the true legality of
international law.
·
So far sanctions are concerned, international law does
not completely lack of it.[29]
The
discussion of whether international law has a legal nature in involved in the
hopeless ambiguity with which the word “law” is used by the writers, and upon
examination amounts to this, that municipal law is enforced by the political
power of the state and international law is not, therefore it has no legal
nature. The answer to this is that in each case there are external factors
determining conduct, and the absence of one factor in one case, which is
present in the other, does not make the conception of the factors any less law.[30]
Ultimately,
this exercise of seeking to demonstrate that international law is or is not law
strikes me as futile. It is clear to all that international law differs in
important ways from domestic law. It is equally clear that it provides a set of
rules that seek to influence state behavior. It seems to me that it is better
to accept that international law is not easily separable from politics. It is
better to recognize that decisions about whether or not to comply with
international law are always intertwined with political questions. When the
United States decided to invade Iraq in violation of international legal rules,
when it chose to erect steel tariffs in 2002 in violation of WTO rules, and
when it signed the Universal Declaration of Human Rights, politics played a
critical role in its choices.[31]
History of International Law;
As no
nation could avoid coming into contact with other nations,[32] International
law in its modern sense has evolved and developed since 15th and 16th
century,[33] but
certain of the basic concepts of international law can be discerned in
political relationships thousands of years ago.[34] Rules
which may be described as rules of international law are to be found in the
history of both ancient and medieval worlds. According to Prof Oppenheim “it is
in its origin essentially a product of Christian civilization and began
gradually to grow from the second half of the Middle Ages”. Rules and usages
were observed with regards to external relations and their violation called for
religious expiation.[35] And almost
all civilized States have made their contributions in its development. In this
connection the contribution of Jews, Romans, Greeks, Hindus and Muslims
deserves a special mention.[36]
Contributions;
Jews;
The famous
slogan of the Jews was, “Love the stranger for yet were strangers in the land of
Egypt”. It is clear from this slogan that they believed in internationalism.[37] Furthermore the history tells us that Egyptians and
Jewish tribes entered into some sort of treaties to accord respect to
ambassadors,[38] and they
were considered sacrosanct and treaties were faithfully observed.[39]
Greeks;
The value
of Greece in a study of international law lies partly in the philosophical, and
political analysis and partly in the fascinating state of inter-relationship.[40] They lived
in small city states. The mutual relations of these states were regulated and
governed by some definite rules and principles. They had formulated definite
laws of war and peace. They used to resolve their dispute through arbitration.
There was also provision for exchange of prisoners.[41] The
maritime law of Rhodes is an instance of the general acceptance of common
principles.[42] Prof
Oppenheim has rightly remarked that “the Greeks had shown to the world how
sovereign states could live in mutual co-operation with each other like a
single community. But they only consider international rules as religiously
binding not legally”.[43]
Romans;
Rome made
constitutions in through the way of extension of her own laws of wider spheres,
and in attempt to adapt the Roman laws to conditions in remote territories.[44] And it
cannot be denied that the Romans contributed much to the development of modern
international law. In its early period, Rome was a small city state and had
relations with other states. These relations were based on the rules of
international law.[45] One of the
most influential Greek concepts taken up by the Romans was the idea of Natural
Law, and their theory was that it constituted a body of rules of universal
relevance. This element of universality is basic to modern doctrines of
international law.[46] Their relationships were depended on a treaty
of friendship between Rome and other state, and if it existed, then persons and
good comings from other countries stood under legal protection.[47] They
divided treaties into three categories, 1) Treaty of Friendship, 2) Treaty of
Alliance, and 3) Treaty of Hospitality and they strictly adhered to the
provisions of treaty.[48]
Hindus;
Many Hindu
Rules displayed a growing sense of morality and generosity.[49] Hindu
culture witnessed a relationship of respect to foreigners on the basis of
consent of Dharma or Dharam. Even if such Hindu Rules were religious or moral
in nature, nevertheless they resembled the modern rules of International
Humanitarian Law (Law of War) to some extent and thus it can be argued that
they paved the foundation for the development of the rules of war.[50]
Muslims;
The
approach of Muslim Rulers to international relations and law was predicted upon
a concept of Dar al Islam, as between Moslem counties.[51] Muslim
Rulers of India had relations with other nations. They received the ambassadors
of other states and entered into treaties with them. The Muslim rulers
recognized the distinction between combatants and non-combatants and had
formulated rules for according protection to women and children during war.
They observed their treaties in good faith.[52]
Development of international in different centuries;
15th, 16th and 17th
centuries;
As pointed
out by Brierly “some understanding of the main features of this modern state
system is therefore necessary to an understanding of the nature of
international law”.[53] Seven
factors prepared the ground for growth of international law in future;[54]
1. First, the
Civilians and Canonists. Civilians considered Roman law as the law of civilized
world.
2. Secondly,
collection of maritime law of in connection with international trade.
3. Third, the
numerous leagues of trading towns for the protection of their trade and trading
citizens.
4. Fourth,
growing custom of the States of sending and receiving permanent legations.
5. Fifth,
custom of States keeping standing armies.
6. Sixth, the
Renaissance and the Reformation.
During
these Middle Ages, English law established the law merchant, a code of rules for governing the foreign traders and
this declared to be of universal application. Through the Europe the mercantile
courts were set up to settle disputes between tradesmen. Maritime customs began
to be accepted throughout the Continent. With the rise of modern state and
emancipation of international relations, the concept of sovereignty emerged.[56] Further developments may
be summed up as;
·
Expansion of commerce, especially maritime, emphasized
the duties and rights of nations.
·
Closely connected with the development of maritime law
during the latter part of the middle period was establishment of office of
consul.
·
Discovery of America marked a new epoch in territorial
and mercantile expansions.[57]
Grotius the founder of modern international law;
The fluctuations and uncertainties
in theory and practice of international intercourse, both in peace and war,
made men ready to hear the voice of Grotius (1583-1645)[58]. He was Dutch Scholar and
his primary work was the De Jure Belli as
Pacis written during 1623 and 1624. One of his most enduring opinions
consists in his proclamation of the freedom of the seas.[59] De Jure Belli as Pacis has following four main characteristics;
1. He
advocated that States should also be subject to the same rules which regulate
the individuals.
2. He
formulated the law of peace.
3. He
contended that States violating the law may be punished by other States.
4. In his
view, Natural Law was the basis for determining rules for the rightful conduct
of States.[60]
Since law of Nations was now a
necessity and many principles were already recognized among the doctrines of Grotius
and since his book obtained such a world-wide influence that he is correctly
styled as Father of the law of nations.[61]
18th century, Naturalists and Positivists;
Two different school of thoughts
identified, one is Naturalist exemplified by Samuel Pufendorf (1632-94) who
attempted to identify international completely with the of nature, and on the
other hand there were the Positivist who distinguished between international
law and Natural law and emphasized practical problems and current state
practices.[62]
Naturalist maintain that all Law of Nations only a part of the Law of Nature.[63] The most important
Naturalists were Pufendorf, Christian, Thomasius, Franics, Hutcheson.[64]
While the Positivists are antipodes
of the Naturalists and they defend the existence of Law of Nations as the
outcome of custom of international treaties.[65] Positivism became very popular during 18th
century. They claimed to have based their theory on the actual practice of
States and laid emphasis on law of positivism i.e. which is law in fact. The prominent Positivist were
Cornelius, Moser, and Martens.[66]
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.[67]
19th and 20th centuries;
The nineteenth century by contrast was a
practical, expansionist and positivist era.[68]
It presented the final impetus needed for International Law and more and more
treaties, conventions and agreements established.[69]
The science of the Law of Nations developed progressively during the nineteenth
and twentieth century under the influence of three factors;
·
First
factor was the endeavor of the Powers after the Congress of Vienna to submit to
the rules of Law of Nations.
·
Second
factor was the many law making treaties.
·
Last but
not least factor was the rising predominance of positivism over the theory of
law of nature.[70]
Some important factors in the development of
International Law were;
1. Congress
of Vienna 1815; rules of
international law were formulated e.g. rules relating to international rivers,
agents etc.
2. Declaration
of Paris 1856; rules
relating to naval warfare were laid down.
3. Geneva
Convention 1864; rules
relating to the wounded and sick members of the armed forces during land
warfare were laid down.
4. Hague
Conferences of 1899 and 1907; these conferences are rightly reckoned as great landmarks. They
resulted in the adoption of several conventions on various subjects of
international concern.
5. League of
Nations; The League of
Nations was established under the Treaty of Versailies, 1919. It for the first
time, imposed certain restrictions upon the nation’s right to resort to war at
their will.
6. Geneva
Convention 1929; This was
signed by 47 States of the world. Many rules relating to the treatment of
prisoners of war were laid down in this convention.
7. United
Nations; The United
Nations Charter came into force on October 24, 1945 and thus the United Nations
was established to regulate the mutual relations of its members and for
international peace and order.[71]
Thus after the development of United Nations
the development of International Law has been effected mainly through
multilateral law making treaties. The chief objective of International Law is
to establish the rule of law in international field and to ensure the
maintenance of international peace and security.[72]
Defining International Law;
According to Prof Oppenheim, “Law of Nations
or International Law is the name for the body of customary and treaty rules
which are considered legally binding by the States in their intercourse with
each other.”[73] But
this may not be adequate definition of international law. This can be
criticized as under;
As in case Reparation
for Injuries Suffered in the Service of the U.N. Advisory opinion[74]
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”. Furthermore today, individuals and other private persons may also have
some rights and duties under international law. After the Second World War the
most important change in international law is the addition of its subjects,
i.e. international organizations, individuals.
And today, as per Article 38 of the Statute of
International Court of Justice, International law not only consists of
customary and conventional rules but also of ‘general principles of law’.[75]
Another definition of international law is as
under;
J. G. Starke’s; “International law may be
defined as that body of law which is composed for its greater part of the
principles which states feel themselves bound to observe, and therefore, do
commonly observe in their relations with each other.”[76]
This definition as well in view of
developments during the last some decades, cannot stand as a comprehensive
definition. These developments are;
·
The
establishment of a large number of permanent international institutions or
organizations, e.g. WHO, U.N.
·
The
present movements to protect human rights and fundamental freedoms of individuals,
furthermore declaration of certain acts to be as international crimes, i.e.
crime against peace, crime against humanity.[77]
Before World War One there was no issue with
regards to the definition of international law, and till World War Two “only
States were regarded as subjects 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”.
But, after World War Two, the scope of
international law expanded. New actors, i.e.
·
International
Organizations
·
Transnational
Corporations/Companies
·
Inter-governmental
and Non-governmental organizations
·
Indigenous
people
These expansions creates more complications in
defining international law.
Sir Robert Jennings said; “International Law
should be defined with regards to actually using and applying it”.
J. L. Brierly; “The Law of Nations or
International Law may be defined as the body of rules and principles of action which
are binding upon civilized States in their relations with one another”.[78]
In S.S. Lotus Case[79],
international law was defined in the following words, “international law
governs relations between independent states”.
Vaughan Lower in his book “international law,
a very short introduction” defines 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 Law in light of Pakistani Court Judgments;
Haji LAL MUHAMMAD
Versus
FEDERATION OF PAKISTAN
PLD 2014 Peshawar
199
“It is by now settled that
International Law, unless in direct conflict with the Municipal Law, ought to
be applied and respected by Municipal Courts in deciding matters arising therefrom”.[80]
AHTABAR GUL
VS
State
PLD 2014
Peshawar 10
“When international obligations and
bilateral commitments come in conflict with municipal laws, the latter are to prevail”.[81]
A.M. QURESHI
VS
UNION OF SOVIET
SOCIALIST REPUBLICS
PLD 1981 SC 377
“To be customary
international law it must have two Constitutive elements of: (i) must have a
general practice of states and (ii) such general practice must have acceptance
of state; as law. Mere habitual following of a certain line of conduct either in
doing or not doing something.
Not sufficient-Existence of
rule of International Customary Law or General International Law-Held, can be
established only when States shown to act in such way due to recognition of
their legal obligation to such effect”.[82]
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[2] Malcolm n shaw, International Law (6th edn,
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[3] Ibid.
[4] L n tandon & s k kapoor , International Law
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[5] Malcolm
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[6] L
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[7] Ibid 2.
[8] J
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[9] Malcolm
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[10] Jose e alvarez, 'But is it Law?' [2009] 103(163)
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[12] L
n tandon & s k kapoor , International Law (Mansoor Book House 2011)
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[13] Malcolm
n shaw, International Law (6th edn, Cambridge University Press 2008) 3.
[14] Theodore s woolsey,
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oppenheim (ed), h lauterpacht , International Law A Treatise (8th edn,
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[16] L
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[17] L
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[18] L
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[19] Ibid 13.
[20] Ibid 10.
[21] Ibid 18.
[22] L
n tandon & s k kapoor , International Law (Mansoor Book House 2011) 65,
66.
[23] Ibid.
[24] Malcolm
n shaw, International Law (6th edn, Cambridge University Press 2008) 4.
[25] Ibid 6.
[26] L
n tandon & s k kapoor , International Law (Mansoor Book House 2011)
66.
[27] Ibid 67.
[28]
(1900) 175 U.S. 677.
[29] L
n tandon & s k kapoor , International Law (Mansoor Book House 2011)
67, 68.
[30] Roland r foulke,
'Definition and Nature of International Law' [1919] 19(6) Columbia Law Review
<http://www.jstor.org/stable/1111587> accessed 16 October 2017
[31] Andrew t guzman,
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[32] L
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[33] Zamin
hussain talpur, International Law (2nd edn, Pakistan Law House 2017) 25.
[34] Malcolm
n shaw, International Law (6th edn, Cambridge University Press 2008) 14.
[35] L
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LONGMANS 1955) 72.
[36] L
n tandon & s k kapoor , International Law (Mansoor Book House 2011)
114.
[37] Ibid 115.
[38] Zamin
hussain talpur, International Law (2nd edn, Pakistan Law House 2017) 25.
[39] L
oppenheim (ed), h lauterpacht , International Law A Treatise (8th edn,
LONGMANS 1955) 73.
[40] Malcolm
n shaw, International Law (6th edn, Cambridge University Press 2008) 16.
[41] L
n tandon & s k kapoor , International Law (Mansoor Book House 2011)
115.
[42] Zamin
hussain talpur, International Law (2nd edn, Pakistan Law House 2017) 26.
[43] L
oppenheim (ed), h lauterpacht , International Law A Treatise (8th edn,
LONGMANS 1955) 75.
[44] Zamin
hussain talpur, International Law (2nd edn, Pakistan Law House 2017) 26.
[45] L
n tandon & s k kapoor , International Law (Mansoor Book House 2011)
115.
[46] Malcolm
n shaw, International Law (6th edn, Cambridge University Press 2008) 17.
[47] L
oppenheim (ed), h lauterpacht , International Law A Treatise (8th edn,
LONGMANS 1955) 76.
[48] L
n tandon & s k kapoor , International Law (Mansoor Book House 2011)
116.
[49] Malcolm
n shaw, International Law (6th edn, Cambridge University Press 2008) 15.
[50] Zamin
hussain talpur, International Law (2nd edn, Pakistan Law House 2017) 26.
[51] Malcolm
n shaw, International Law (6th edn, Cambridge University Press 2008) 18.
[52] L
n tandon & s k kapoor , International Law (Mansoor Book House 2011)
116.
[53]
J. L Brierly The Law of Nations (6th
edn) 1.
[54] L
oppenheim (ed), h lauterpacht , International Law A Treatise (8th edn,
LONGMANS 1955) 79.
[55] Ibid 79-82.
[56] Malcolm
n shaw, International Law (6th edn, Cambridge University Press 2008)
18-22.
[57] Zamin
hussain talpur, International Law (2nd edn, Pakistan Law House 2017)
26-30.
[58] Ibid 30.
[59] Malcolm
n shaw, International Law (6th edn, Cambridge University Press 2008)
23-24.
[60] L
n tandon & s k kapoor , International Law (Mansoor Book House 2011)
117.
[61] L
oppenheim (ed), h lauterpacht , International Law A Treatise (8th edn,
LONGMANS 1955) 84.
[62] Malcolm
n shaw, International Law (6th edn, Cambridge University Press 2008) 25.
[63] L
oppenheim (ed), h lauterpacht , International Law A Treatise (8th edn,
LONGMANS 1955) 95.
[64] L
n tandon & s k kapoor , International Law (Mansoor Book House 2011)
120.
[65] L
oppenheim (ed), h lauterpacht , International Law A Treatise (8th edn,
LONGMANS 1955) 96.
[66] L
n tandon & s k kapoor , International Law (Mansoor Book House 2011)
120.
[67] Malcolm
n shaw, International Law (6th edn, Cambridge University Press 2008) 26
[68] ibid 27.
[69] Zamin
hussain talpur, International Law (2nd edn, Pakistan Law House 2017) 34.
[70] L
oppenheim (ed), h lauterpacht , International Law A Treatise (8th edn,
LONGMANS 1955) 106.
[71] L
n tandon & s k kapoor , International Law (Mansoor Book House 2011)
122-124.
[72] Ibid 124.
[73] L
oppenheim (ed), h lauterpacht , International Law A Treatise (8th edn,
LONGMANS 1955) 4.
[74]
I.C.J. Rep. (1949), p. 174
[75] L
n tandon & s k kapoor , International Law (Mansoor Book House 2011)
51, 52.
[76] J g starke's, Introduction to International Law
(First Indian Reprint 1994) 3.
[77] Ibid.
[78] L
n tandon & s k kapoor , International Law (Mansoor Book House 2011)
54.
[79]
(1927) P.C.I.J. Series A, No. 10.
[80] PLD 2014 Peshawar 199
[81]
PLD 2014 Peshawar 10
[82]
PLD 1981 SC 377
