Public International Law

Public International Law: Nature, Scope, Codification, Sanctions

29/5/2019

What is Public International Law?

The term Public ‘international law’ was first used by Jeremy Bentham in 1780. Oppenheim defined it as, “the name for the body of customary and conventional rules which are considered legally binding by civilized states in their intercourse with each other.” This definition of Oppenheim was criticized on various points due to which it needed reform. This reform was made by Sir Robert Jennings and Sir Arthur Watts. They defined “International law is the body of rules which are legally binding on states in their intercourse with each other. These rules are primarily those which govern the relations of states, but states are not the only subjects of international law. International organizations and to some extent, also individuals may be subject to rights conferred and duties imposed by international law.”

The definition which is given by Robert and Arthur is wider than the earlier definition as it postulates that international organizations and individuals are also the subjects of international law. But this definition is silent about the ‘General principle of law’ recognized by a civilized nation.

Modern Definition of International Law

The traditional definitions given by various authors are suffering from basic defects as they are narrow in their scope. The most acceptable definition is given by Professor Starke. He has taken into account all the modern developments and changes in human thinking. According to him, “International law is that body of law which is composed for its greater part of the principles and rules of conduct which states feel themselves bound to observe, and therefore, do commonly observe in their relations with each other, and which includes also:

The rules of law relating to the functioning of international institutions/organizations, their relations with each other, and their relations with states and individuals; and
Certain rules of law relating to individuals and non state entities so far as the rights or duties of such individuals and non state entities are the concern of the international community.”

Starke clearly widened the scope of the definition when he included not only the relations between states but also the rights and duties of international institutions as organizations, individuals and other non state entities.

Basis of International Law (Jurisprudential Theories)

The difference of opinion among the jurists led to the emergence of the following theories:
1. Naturalist Theory
In the view of Naturalist Jurists like Grotius, Pufendorf and Vattel “Law of nature” is the foundation of all law including international law. International law is binding on the states as it is a part of the law of nature. Grotius (1583-1645) secularized the concept of natural law. He lent legal basis to many areas of international relations and therefore, he is popularly known as the father of the law of nations. The theory of Fundamental rights is based on the naturalistic viewpoint.
2. Positivist Theory
Positivists define law as a command of the sovereign to its subjects and the sanction is its physical force. According to them, the rules of international laws and municipal laws are equally binding, since both are issued by the will of the state, which is the source of the validity of the law. It is the will of the state that commands obedience both in municipal law and international law.

Nature/Characteristics of International Law

Since the emergence of the positivists, there is a controversy which is waged over the nature of International law.” One of the most debatable questions concerning this controversy is “Whether international law is true law.” Positivists maintain that international law is no law; it comprises of only the rules of positive morality. They argued that there can be no international law since there is no international legislature to make it, no international executive to enforce it, and no effective international judiciary to develop it or to resolve disputes about it.
1.    Austin: International law is not a true law
A number of jurists like Hobbes, Bentham and Pufendorf have a view that there is no positive law of nations properly invested with a true legal force. According to leading English Jurist, John Austin, International law is not a true law, but a code of rules of conduct of moral force only. Basis of Austin’s view is that International law is having no command of the sovereign.

2.    Holland: International law is the Vanishing point of Jurisprudence
He observed that the rules of international law “are voluntary, though habitually, observed by every state in its dealings with the rest.” Such rules can only be called the law “only by courtesy”. In international law both parties are judges of their own cause, there is no arbiter above the parties.
3.    International law is real law (Oppenheim, Starke, Pollock, Brierly)
International law works in a decentralized system, while Municipal law works in a centralized system. Once we accept this fact it is obvious to understand that the comparison between the two systems is not proper. The comparison is not proper because municipal law and international law are different for they operate under a different set of circumstances. Modern jurists accept that international law is real law. The main arguments of modern jurists are:
a. Many states (USA, UK, France, and Germany) have incorporated international law as part of the law of the land in their constitution. The US constitution lies down that treaty are the supreme law of the land. In the Paquete Havana case (1900), Justice Gray of the USA Supreme Court observed that it is part of their laws.
b. Customary rules of international law are diminishing and are being replaced by lawmaking treaties and conventions.
c. While dealing with international law states rely on treaties, precedents and opinion of experts.
d. International conventions and conferences also treat international law as true law.

4. International Law is weak Law.
International law is not equivalent to municipal law. It is not only less explicit than state law, but it also lacks the coercive force of state law. There is no sanction for violation of international law. Some of the weaknesses of International law are as follows:
a. No central Legislature: It lacks effective legislative machinery. There is no world parliament.
b. No Universal Jurisdiction of courts: Though International Court of Justice has been established, still it does not exercise universal compulsory jurisdiction for setting legal disputes between States since the court acts with the consent of other states only.
c. No effective executive authority: It lacks an executive authority to enforce its rules. The UNO cannot take appropriate executive action in cases which call for an immediate solution.
d. No enforcement machinery: There is an absence of international police or military force. This creates a vacuum in so far as the executive role of the UNO is concerned.

Sanctions in International Law

The Sanctions in international law include measures and procedures for exerting pressures upon a state to comply with its international legal obligations. Sanctions under classical international law comprised of war and reprisals. In modern International law, war and reprisals in most of the cases have become unlawful in most of the cases.
1. Sanctions by States: A state may apply sanctions by means of self-help. Self-help is a right of a state which is available to the victim of a wrong. Under the present rules of the United Nations, there is a rule of restraint on a state to take action in self help The action taken in self-help is required to be in strict compliance with the provisions of the Charter and within due limits of the powers vested in each of them.
2. Collective sanctions: International organizations which are set up by the states are empowered to take collective sanctions against a state which violates the rule. The UN charter postulates economic, financial and military sanctions under Chapter 7. In addition to them, the UN may also apply political sanctions. The decisions of ICJ are binding upon the parties to the dispute. Article 94 of the United Nations also provides that if a party to the dispute does not follow the decision of the court, the other party may approach the Security Council which can take necessary measures to ensure the implementation of the decision.

Scope/Development of International Law

Ancient Period
The civilizations of India, Egypt, Greece and Rome did have advanced notions of what forms a major party of International law today. For example, the customs and usages concerning treaties, privileges and immunities of ambassadors, the conduct of war and conclusion of peace were very much in evidence in ancient India.

Middle period
During the middle period, the climate for international law was not favourable due to the supremacy of the church and the universality of the law throughout Europe prevented the development of International law.

Origin of International Law
The process of development of International law was spread over from the middle of the 9th Century to the end of the 15th Century. The fall of the church lead to the secularization of the political force and with the fall of the Roman Empire along with the rise of national sovereign states led to the emergence of nation-states on the Continent of Europe.

International Law in the 19th Century
It is in the 19th century that the law started looking beyond the Treaty and Customs. The law saw many international conferences taking place. The Congress of Vienna of 1815 marks the starting point of what may be called international legislation. This congress formulated various rules regarding the principle of legitimacy, diplomatic representations and navigation in international rivers. The Declaration of Paris (1856) on the regulation of maritime warfare, Geneva Convention (1864) of Red Cross aimed at the amelioration of the conditions of the sick and wounded in armies in land warfare and the Declaration of ST. Petersburg (1868) prohibiting the use of explosive bullets in the war were some of the important achievements towards the treaty-making in international law.

International Law in the 20th Century
The League of Nations after the First World War was the first international organization designed to maintain international peace and promote cooperation among nations. Permanent Court of International justice in 1921 was succeeded by the present International Court of Justice in 1946. After the second world there were various developments in the field:
1. The establishment of the United Nations Organization (UNO) in 1945.
2. PCIJ was succeeded by the ICJ in 1946.
3. A large number of permanent International institutions like the ILO, WHO and International Civil Aviation organization etc.
4. International Law Commission (ILC) was created in 1947 which played a very significant role in the codification and progressive development of international law.

Modern International Law
International Jurisprudence has acquired the maturity to realize that effective international cooperation and guaranteeing the sovereign rights of states and peoples. The primary sources of International law comprise of Treaties, customs, general principles of law. The resolutions of the General assembly and Security Council have a tremendous contribution as a secondary source of International law. The codification of International law is been done by the International Law Commission, created in 1947. In 1982, the United Nations Conference on Law of seas (UNCLOS) was adopted after the hard work of 20 years. The protection of Human rights movement led to the formation of the Universal Declaration of Human rights (UDHR) of 1948. The most important measure for the implementation of Human rights is International Covenant on Civil and Political Rights, Its Optional Protocol and International Covenant on Economic, Social and Cultural Rights.
There are various regional organizations are created for reasons of Military security like NATO, others to promote regional and cultural identity like the African Union and the Organization of the American States and European Union (EU).

United Nations is created after Second World War

Codification of International Law

Codification means the systematic arrangement of the rules of law which are already in existence. It involves three basic processes: Firstly, the grouping together of all the rules in an orderly and logical manner; secondly, an attempt to correct defects in those rules, that is, the filling of omissions; and thirdly, the enactment of new set of rules into binding law by some agency having the power to do this act.
The UN General Assembly established the International Law Commission (ILC) in 1946 to promote codification of international law.
The major works of ILC can be listed as follows:
1. Its major contribution has been in the fields of law of treaties, the law of diplomatic and consular relations, and the law of the sea.
2. The commission helped in the adoption of multilateral conventions like The Geneva Convention on the Law of Sea, 1958, Vienna Convention on Diplomatic Relations, 1961, The Vienna Convention on Consular Immunities, 1963.
3. Apart from ILC, United Nations body has led to the adoption of Multilateral Convention like the 1982 Law of the Sea Convention was based on the work of the 3rd United Nations Conference on the Law of the Sea (UNCLOS).

Third World and International Law

The disintegrations of the colonial empire led to the birth of new states, which is often termed as ‘the third world’. The new nations have eagerly embraced the ideas of the sovereignty and equality of states and the principle of non-aggression. The contribution of the third world can be enumerated as follows:
1. They demand an increase in the permanent membership of the Security Council.
2. Article 9 of the ICJ points that the main forms of principal legal systems of the world must be represented by the court.
3. The adoption of the resolution on ‘New International Economic order’.

Third World Supported International laws

Conclusion

The framework of International law is retained. While this new internationalization of international law that occurred in the last 70 years has destroyed its European based homogeneity, it has emphasized its universality scope. Now the emphasis is more on cooperation rather than on reciprocity and co-existence to fulfill their aspirations in the new international legal order.

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