International Relations Notes Series
The Relevance of INTERNATIONAL LAW in INTERNATIONAL RELATIONS
What is International Law?
International laws are rules which relate to the functioning of individuals, institutions and states in the international arena. International law has various ingredients including general principles of law and justice, which are equally suited to regulating the conduct of individuals, organizations within a state and states themselves.
Evolution of International Law
Formulation of international law can be traced back to the third and fourth millenniums B.C. Early rulers had made international rules to safeguard emissaries, initiation and cessation of hostilities and arrangement of truces, and maritime laws.
To aid governance, the Romans devised principles of just gentrium or law of the people. By the time the Roman Empire fell, application of these laws was widely accepted.
European states also contributed to international laws at a later stage in history. By the 14th century, scholars were writing about international law. Hugo Grotius, for example, produced a momentous work on laws concerning war and peace, emphasizing the independent nature of law.
During the eighteenth century, three prominent schools of thought concerning international law were evident; the positivists, the naturalists and the Grotians.
The naturalists believed in upholding morality through laws. The positivists focused on practicalities and the consensual nature of these laws. The Grotians combined both naturalists and positivist elements.
In the past century, the League and the UN system, and subsequently the International Court of Justice have made important contributions to international law. Other institutions like IMF or WTO influence laws concerning trade economic laws.
Different Types of International Law
Private and Public Laws: private law concerns individuals, whereas public law concerns the behavior of organizations and even states.
Procedural and Substantive Laws: Procedural laws define types of permitted behavior whereas substantive laws concern territorial rights of states.
Laws of War and Peace: There are laws governing behavior of states in a state of war (concerning rights of prisoners of war) and those meant to prevent outbreak of violence and promote peace.
Particular and General Laws: General or universal laws are applicable to all sovereign states, whereas particular laws are defined by bilateral or regional agreements.
Another Perspective on International Laws
Another viewpoint through which one can consider the topic of international law is to focus on the laws of power, coordination and reciprocity.
Laws of power regulate master-slave relations. Those of coordination regulate relations amongst members of the same group. Laws of reciprocity refer to the intermediary interaction which implies mutual benefit.
Naturalists vs. Positivists
Naturalism and positivism developed side by side. Naturalists argued that Divine authority was the source of all laws. They argued that such laws had international validity as they were relevant for all humans and were consistent with logical deductions concerning our natural state.
There is not much evidence of wide bodies of natural laws being accepted just because of their logical consistency or because of consistent obedience to Divine authority (St. Augustine was a prominent naturalist).
Positivists argued that only those international laws had validity, which were adopted by consent of sovereign states. Consent is therefore considered the basis for the sense of binding obligation implied by international laws.
The Grotians or the eclectics treaded the middle path between the positivists and naturalists, conceding to the relevance of both morality and consent.
Sources of International Law
Article 38 of the ICJ recognizes natural laws, general laws, custom and legal commentaries as the basic sources of international law. Based on principles of universal acceptability, some natural laws are applicable across the world. Based on the implicit or explicit consent of states, customary laws are mainly based on customs or treaties. General laws defined with reference to terms like justice or rights, enables jurists to fill in the gaps left by positivist laws. Legal commentaries help clarify, elaborate upon and apply the broad nature of laws to specific circumstances.
Formulation & Implementation of International Laws
There is no formal institution to make international laws, so they are made outside of formal institutions. Treaties, for example imply signatory states to accept certain conditions concerning a particular issue. Some treaties are made by international institutions but they only come into effect after ratification by sovereign states.
If a sufficient number of states follow a customary practice, it becomes an international custom. The International Court of Justice (ICJ), which is composed of UN member states recommended by the Security Council, has an advisory capacity to interpret treaties, but it lacks the authority of national courts.
International tribunals also lack the authority of national judicial institutions. There is no inte rnational institution to implement international laws. Individuals and states are treated as objects of international laws. War crime tribunals were after WWII and after the massacres of Rwanda, the former president of Serbia is being prosecuted for war crimes against the Muslims of Bosnia by the ICJ.
International versus National Laws
National laws have much greater legitimacy than international laws. While individuals rarely have recourse to self-help within nations, states rely on self-help as a matter of norm lest they are bound by a treaty of some sort. With the passage of time, international laws are becoming more accepted and complex and sanctions and international censure ensure states to oblige to them.
Relevance of International Laws
Despite its limitations, international law helps give shape to international order. It influences and channels bilateral or even multilateral economic, social and political cooperation. It provides the normative background based on which independent states can make their decisions.
Maritime: concerning the sea and its navigation
Bilateral: between two parties
Momentous: major or significant Consensual: seeking agreement
Multilateral: operating at multiple levels
Normative: ethical or moral
Censure: criticism or denouncement
Validity: acknowledgement or legitimacy