Introduction to PIL - notes for online exam due to covid. got this then no need study other stuff PDF

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Introduction to PILStates cannot have mutual intercourse without international law to regulate their conduct. International law is traditionally defined as the law that governs states in their relations with another. According to Oppenheim, international law is the body of rules which are legally bi...

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Introduction to PIL States cannot have mutual intercourse without international law to regulate their conduct. International law is traditionally defined as the law that governs states in their relations with another. According to Oppenheim, 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 organisation and also individuals may be subjects of rights conferred and duties imposed by international law. Von Glahn defined international law as a body of principles, customs and rules recognised as effectively binding obligations by sovereign states and such other entities as have been grated international personality. Public international law governs the relations of states and other subjects of international law. On the other hand, private international law is sometimes called conflict of laws. When there are some foreign elements in a transaction, for instance if one of the parties is a foreign national or the contract is made in a foreign country, it will not be fair to apply domestic laws only. The local court has to select the applicable law or settle a choice of law problem. Hence, it is a misunderstanding to categorise private international law as a branch of international law. It is actually a part of the state’s domestic law. There are many distinctions between international law and the national legal system. In a national legal system, there is a government that can exercise supreme authority over all persons and property in state territories. The government has three main functions which are law making, law determination and law enforcement. International law concerns the legal regulation of the international intercourse of states which consider themselves as sovereign and equal. Sovereignty means there is no other high authority than the states. International Law is a horizontal legal system, lacking a supreme authority, the centralisation of the use of force and the differentiation of the three basic functions of law making, law determination and law enforcement. The United Nations General Assembly is not a world legislature; the International Court of Justice can only operate with the state’s consent; the enforcement capacity of the Security Council is legally and politically limited. Whether international law can be regarded as law John Austin opined that law was defined as a command enforced by a sovereign political authority. As there was no sovereign political authority above the sovereign States, Austin believes that international law is not a true law. However, such command theory is largely discredited. Sir Frederick Pollock believes that the only essential conditions for the existence of law are the existence of a political community and the recognition by its members of settled rules binding upon them in that capacity which international law satisfy. Nevertheless, international law can be regarded as a law due to several theories. First is the consensual theory whereby the binding character of international law flows from the consent of States and that consent may be given expressly by means of treaties and impliedly by means of custom. Second is the natural theory whereby the rules of law are derived from the application of the law of nature as a matter of human reasoning. We can find traces of natural law in certain international law rules such as those dealing with human rights, international crimes and jus cogens, which are binding on all States and cannot be altered by the agreement of States. Lastly is the theory of ubi societas, ibi jus. Brierly stated that law can only exist in a society and there can be no society without a system of law to regulate the relations of its members with one another. It means that international law is necessary for the international society to function, and because it is necessary it is binding. Sir Gerald Fitzmaurice mentioned that the real foundation of the authority of international law resides in the fact that the States making up the international society recognize it as binding upon them, and moreover as a system that ipso facto binds them as members of the society, irrespective of their individual wills. Weaknesses of international law It has a number of weaknesses with regards to international law. First of all is the lack of effective institutions. In international legal system, there is no law-making authority that can make law in accordance with new needs in the international community. The General Assembly of the United Nations is not equivalent to World Legislature. It has no legislative power and its decisions are not binding. Although there are arbitral and judicial bodies and a standing International Court of Justice to settle the disputes, their competence is limited because resort to them is not compulsory. International tribunals can exercise jurisdiction only with the consent of the parties. Even though the United Nations Security Council is entrusted with enforcement powers, the veto of the five Permanent Members frustrates its functions and in many instances its decisions are politically motivated.

Secondly is the lack of effective enforcement machinery and becomes a factor to those who argue that international law cannot be taken as a law. However, it is important to take note that the nature of international law and national legal systems are so different and it would not be fair to demand in international law an enforcement system which is characteristic of well organized and highly centralized national legal systems. Lastly is the lack of political will on the part of States. States are reluctant to comply with international law when their vital interests are at stake. For example there are violations of the rule prohibiting the use of force by some powerful States. International law seems powerless to prevent major incidents involving these States especially to the 5 States which veto power is given upon them. With that power, no enforcement action can be taken against any of the Big Five or any State which is a close ally to any of them. Reasons States observe international law Professor Henkin stated that almost all nations observe almost all principles of international law almost all the time. States have internal motivations as well as external pressures to comply with international law. For internal motivations we have three factors. Firstly is the sense of obligation which the States feel obliged or obligated to honour rules of international law because these rules have come into existence on the basis of their consent. The World Court in the 1927 Lotus case held that the international law governs relations between independent States. The rules of law binding upon States emanate from their own free will expressed in conventions or by usages. Second factor is the common self-interest. The international community today is more interdependent than ever. It needs international law to be stable and to maintain law and order. Therefore, it is in the interest of every State to comply with rules of international law. Third factor is the political and economic costs. A State can lose much through a violation of international law. Besides the legal sanctions that might be imposed, there are political and economic costs to be paid such as the loss of credibility, the loss of trust and the reduction in foreign trade. On part of external pressure to comply with international law, States comply to it due to the enforcement of the law by the victim State and sometimes by the international community. Enforcement of international law Lack of effective and centralized enforcement machinery does not mean that international law is important. It has its own system of enforcement which is unique and essentially different from the domestic one. The traditional method of enforcing international law is for the injured or offended State to lodge protests against the law-breaker. Diplomatic protests are the first step of enforcement. Such protests commonly include demands that the wrong done be appropriately righted. If protests are not properly heeded, they can be followed by peaceful or coercive means of enforcement. In peaceful means of enforcement, A.2(3) of the Charter of the United Nations obliges Member States to settle international disputes by peaceful means. The peaceful means of dispute resolution are enumerated in A.33 of the Charter as negotiation between the two disputing States, mediation by a third party, reference to a commission of inquiry or conciliation and reference to an arbitration tribunal or to an international court. In the international legal system, the principal recourse is an inter-State claim, which is a claim by the alleged victim against the State allegedly responsible for the violation. The international claim can lead to reparation or remedy which a relief the victim seeks. There are three forms of reparation under international law which are restitution, compensation and satisfaction. Usually the victim seeks restitution which requires the violate to undo the violation and restore the status quo ante. Where restoration or restitution is not feasible, the law requires monetary compensation for injury suffered. Victims may also seek and accept satisfaction such as acknowledgement of violation or a formal apology. On the part of judicial enforcement, States can have recourse to the International Court of Justice, the principal judicial organ of the United Nations. It is not compulsory for a State to use ICJ for the resolution of a dispute. However when a matter is referred to ICJ, its judgement is binding on the parties and must be carried out. In case of non-compliance, the enforcement is to be made through the Security Council which is the enforcement arm of the United Nations. Both international claim and judicial enforcement are peaceful means of enforcement.

Moving on to the coercive means of enforcement, it can be in a non-military means and military means. Nonmilitary means consists of self-help and countermeasures. Self-help exists as a sanction in all legal systems to States that commits an illegal act against another State and refuses to make reparation or to appear before an international tribunal. The remaining forms of self-help are countermeasures such as retorsion and reprisals. Retorsion is an unfriendly but not an unlawful conduct of a State aiming at injuring the wrong-doer State. For examples are disruption of diplomatic ties, embargoes of various kinds and withdrawal of voluntary aid programmes. Reprisals are acts which would normally be illegal but which are rendered legal by a prior illegal act committed by the other States. For example when State A confiscates property belonging to State B without any justification, State B can retaliate by doing the same to the property of State A. However, the reprisals must be proportionate to the original wrong which the property taken by State B cannot worth several times the value of the property it lost. Von Glahn enumerates various means of countermeasures or sanctions not involving the use of force which includes rupture of diplomatic and possible consular relations, economic sanctions ranging from selective reductions to total stoppage of trade, travel limitations, financial restrictions on the flow of currencies and the elimination of transportation and other means of communication to and from the State. Countermeasures in reprisals are strictly restricted as underlined in A.50(1) of ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts 2001 whereby the countermeasures must not involve the use of military force. It must not involve any departure from certain basic obligations under international law such as fundamental human rights or jus cogens. Lastly, it must be commensurate with the injury suffered which adopts the principle of proportionality. Moving on to the military means of enforcement of international law is the prohibition of the use of force. A.2(4) of the Charter of the United Nations prohibits the use of force against the territorial integrity and political independence of any State. The prohibition is absolute and subject to only two exceptions. First exception is the right of self- defence. A.51 of the Charter allows a State to use military force against another in self defence if there is an armed attack by the other. The armed attack must be actual and not mere threat or even imminent attack. A state cannot use force in self-defence in anticipation of an attack. Second exception is the enforcement measures by the Security Council under A.39 to 50 of the Charter. The true legal sanction involving the use of military force can only be imposed by the Security Council of the United Nations by means of a resolution if it has decided that there is a threat to the peace, a breach of the peace or an act of aggression. Development of international law The origin of international law The origin of international law is a matter of dispute among scholars. The prevailing view is that it emerged in Europe after the Peace of Westphalia in 1648. However, non-Western scholars do not agree with such view. Anand states that international law is not only developed only during the last four or five hundred years in Europe or that Christian civilization has enjoyed a monopoly in regard to the prescription of rules to govern inter-State conduct. The roots of international law go very far back into history. For instance, a treaty was concluded in 3100 BC between two Mesopotamian communities which provided for the settlement of a boundary dispute through arbitration, with solemn oaths for the observance of the agreement. The rulers of ancient India had conducted relations among one another in accordance with some customary rules when Ramayana and Mahabharata make references to rules governing war, peace and neutrality. There are also traces of well developed rules of diplomatic immunity and treaty transactions between ancient China and her neighbouring countries. The jus gentium was created in the early Roman law to provide rules to govern the relations between foreigners and between foreigners and citizens. Islamic international law Nevertheless, Islam has developed its own international law since the seventh century which is knowns as AsSiyar. The world’s earliest treatise on international law is the Kitab As-Siyar Al-Kabir written by Muhammad Al-Shaybani in the eighth century. Among the most important contributions of Islamic international law were its definite rules on prisoners of war, protection of civilian populations, limitations of belligerent activities and reprisals, asylum, pardon, safe conduct, diplomatic immunity, negotiations and peace missions. Islam considers peace as the original state of nature and only in exceptional cases war is permitted. As Surah al-Baqarah 2:251

of Al Quran states that it is a check which limits oppression, injustice and transgression. Furthermore, Islamic international law mitigates the horrors of war and makes it more humane. Examples are in the treatment of civilians and prisoners of war in time of armed conflict. The formation of the present-day international law It begins with the traditional theories of international law. the 17th and 18th centuries gave birth to three separate schools of legal philosophy which are the Naturalists, the Positivists and the Grotians. The Naturalists maintained that international law was merely a part of the law of nature. They believed that international law was derived, not from any deliberate human decision or choice, but from principles of justice which had a universal and eternal validity and which could be discovered by pure reason. They refused to acknowledge treaties or the actual practice of States as the basis of international law. Then, Positivism emerged in the 18th century, whereby law was believed to be positive, that is man-made. The Positivists considered that law and justice are not the same thing and the law might vary from time to time and from place to place. They believed that international law had its true origin in custom and treaties, which are concluded with consent of the States. they regarded the actual practice of States as the basis of international law. The Grotians on the other hand stood in a middle position between Naturalists and Positivists. They considered the positive or voluntary international law as important as the natural. The science of international law further developed during the 19th century. The congress of Vienna in 1815 enshrined the new international order which was to be based upon the European balance of power. International law became Euro-centric and the 19th century was the positivist era. With the rise of positivism, it was generally accepted in the 19th century that sovereign States had unlimited right to make war. Moving on to the modern developments. After the end of the First World War, the trend of juristic thinking has been shifted from a rigid adherence to the traditional positivist philosophy. When no rule based on actual State practice exists, reference can be made to principles of justice and general principles of law which are both apart of natural law ideas. It follows that the old schools of natural law and positivism are still with us and today forms the basis of mainstream thinking in international law in one form or the other. Attitude of the developing States towards international law After the Second World War, the composition of the international community had changed owing to the process of decolonization. The colonial empires of the European powers collapsed and a number of Asian and African countries gained their independence. The newly independent States had a profound impact on the modern development of international law. The United Nations was established in 1945 and remained under the control of the West at the beginning. The independence of numerous colonized countries had changed the power structure in the Organisation and the majority in the General Assembly shifted to the newly independent States which are known as Third World, which had the support of the communist bloc. The newly independent States organized themselves as non-aligned countries in the Group of 77 formed during UNCTAD I in 1964. They have no common ideology, but only one thing in common, they are small, weak, poor, vulnerable and have resentment towards colonial rulers. They feel that the 19th century development of international law was founded upon Eurocentrism and does not reflect the needs and interests of them. Most developing countries were under alien rule during the formative period of international law and therefore played no part in shaping that law. They argue that they are not bound by rules in the creation of which they did not participate. However, they have no idea of rejecting all rules of international law which were laid down before they became independent. That would amount to rejecting many rules which operate to their advantage. They normally accept the necessity of international law itself as a legal system regulating intercourse between States. Their main concern is to internationalise international law, which was originally European-based. In particular, they want to abolish the former law of domination as expressed in the colonial system which includes acquisition of State territory by means of annexation or conquest and the unequal treaties. They want equal representation on the international bodies such as the Security Council and the International Court of Justice. They want international law to be a law of protection, a law which may protect the weaker States such

as absolute prohibition of the use of force with very limited exceptions. They also demand an international law of cooperation, a law which may promote their economies and help them in raising their standard of living. Most developing countries are poor and have confronted the industrialised or richer countries more pressingly with their problems of poverty and economic development. The UN General Assembly has become their main forum to ventilate claims for a New International Economic Order, the application of common heritage of mank...