lecture notes on unit 01.docx

Outlines of International Law -- Asmatullah Kakar ([email protected]) University Law College, Quetta

OUTLINES OF INTERNATIONAL LAW, 2014 ASMATULLAH KAKAR

Chapter 1: Nature Origin and Basis of International Law

I. WHAT IS INTERNATIONAL LAW?

Meaning: Law applicable between States known as Law of Nations previously.

The phrase ‘International Law’ or ‘Law of Nations’ has been coined by Jeremy

Bentham.

Definitions:

Classical Definitions:

L. 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.”

J.L. Brierly: “The Law of Nations or International Law may be defined as the

body of rules and principles of actions which are binding upon civilized States

in their relations with one another.

Gray: “International Law or the Law of Nations I s the name of a body of rules

which according to the usual definitions regulate the conduct of the States in

their intercourse with one another.”

Kelsen: “International Law or the Law of Nations is the name of a body of rules

which according to the usual definition – regulate the conduct of the States in

their intercourse with one another”.


Criticism on Classical Definitions:

As to Subjects: Not only states but also IGOs, NGOs, MNCO’s, Individuals etc.

are the subjects of International Law.

As to Sources: Not only customs and conventions but also other sources, like

‘General Principles of Law recognized by Civilized States’, Juristic writings etc.

(See Art. 38 of the Court of International Court of Justice)

As to Structure: Not a body (compact and static) but a process (adoptability and

changing)

Modern Definitions:

Whiteman: “International Law is the standard of conduct, at a given time, for

states and other entities subject thereto.”

J.G. Starke: Most comprehensive definition:

“International Law may be defined as 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 includes also—

(a). the rules of law relating to the functioning of international institutions or

organizations, their relations with each other, and their relations with States and

individuals; and

(b). certain rules of law relating to individuals and non-State entities so far as the

rights or duties of such individuals are the concern of the international

community.”

II. KINDS OF INTERNATIONAL LAW

International Law may be divided into following kinds:

Public International Law: Public International Law is commonly known as

International Law. Its definitions have been given above. Therefore, it is “a law


consisting on rules and principles, which govern the relations of States inter se,

the relations of other entities among themselves and their relations with states.”

Private International Law: Private International Law is the law consisting on

rules and principles determining the questions as to jurisdiction of the court and

selection of appropriate law to be applicable, in cases involving a foreign

element.

It is also known as ‘Conflict of Laws’,

It is applicable in situations when a case in a domestic court involve a

foreign element, and the first question arises that whether the Court has

Jurisdiction? After deciding the first question in affirmative then the next

question would be that on the basis of which country’s law the case is to be

decided?

For example, A, an English citizen, marries B, an Egyptian citizen, in

America in 2011. They are living Pakistan for the time being and there arose

certain misunderstanding between them which B to sue for divorce in a

family court of Pakistan. In this case, before the family court could decide

the case, it has to determine the following questions:

1. Whether the Family Court of Pakistan has jurisdiction in the present

Case? and,

2. If yes, then the law of which country (England, Egypt, America or

Pakistan) shall be applicable?

The law which is giving answers to these questions is known as Private

International Law.

This law, is in fact, the part of the domestic law itself. In other words, every

state has its own set of rules to determine the above two questions.

Therefore, it can be said that Private International Law is changing from

State to State.


Moreover, it is the law applicable between the nationals of two or more than

States.

For its major part, it is civil in nature.

Distinction between Private and Public International Law:

Public Int’l Law Private Int’l Law

1. Mostly deals with States 1.

Mostly deals with Individuals

2. Its sources are treaties, customs etc.

2.

It sources is domestic law.

3. Same for all States who agreed to it

3. Different in different States

4. Both civil and criminal in nature 4. civil in nature.

III. BASIS OF INTERNATIONAL LAW

Two theories explaining the foundation of International Law:

Naturalism: This school consider international law as derived from natural

reason

Positivism: This school believe in the consent of the states for creation of

international law rules.

BASIC PRINCIPLES

Natural Theory Positive Theory

1. Law — principles of universal and

eternal application

1. Law is decreed by States

2. Law is not made but discovered 2. States create international law by

express or tacit consent — the will

of State is Supreme

3. Binds both the state and individuals 3. Principally binds states

4. Binding on States independent of

their consent

4. State bound by those rules to which

it has clearly consented. Can

voluntarily restrict own sovereignty


5. Can be discovered on the basis of

reason

5. Can be seen in treaties

CRITICISM

Inconsistency – may not be universal as

content of law differs due to different

interpretations

If State are not bound by a Higher

Law, it will do whatever it pleases to

do

IV. WEAKNESSES OF INTERNATIONAL LAW

Weaknesses are apparent when we compare it with municipal law.

The main weaknesses in so comparing would be as under:

It is lacking an effective legislative machinery. Some jurists argue that the

institution of treaty is the legislative machinery in International, but as a

matter of fact, treaties are agreement and could not be regarded as legislation.

It is also lacking an efficient executive authority responsible for its

enforcement.

It also lacks an efficient judiciary to interpret it. Though International Court

of Justice is existing, however, as it is not having compulsory jurisdiction,

therefore, it could not called as a satisfactory judicial authority.

The sanction in domestic law is more coherent and structured, whereas, the

sanction in international law is very loosely structured, therefore, its frequent

violation is logical.

V. SANCTIONS IN INTERNATIONAL LAW

Sanction means the coercive measures to enforce the violations of a law. Though

there is no effective sanctions in international as compare to domestic

international law, however, there are following sanctions in international law.


Sanctions that may be carried out by Individual State

Social Sanction

This a moral sanction of international community in shape of adverse opinion

against the violator state.

Diplomatic/Political Sanctions

Diplomatic or political sanctions are measures other than economic and

military. These involve the limitation or suspension of diplomatic and high

government officials with state that is or has violated international law. These

also include the political propaganda and other similar political measures

against the Violator State with a view to isolate it.

Economic Sanctions

Economic sanctions consists on limiting or blocking the export of goods to

the Violator State. It also include the naval blockade of the ports of the

Violator State to ensure the blocking of certain goods.

Military Sanctions

Military sanction is of two kinds. It may either be a threat of war or actual

waging of war against the Violator State.

Other Sanctions

Collective Measure

Chapter VII of the United Nations Charter clearly prohibits the activities

which may pose a threat to international peace and security (see for

example Article 2(4) and 51 of the Charter). Every act to this extent is to

be adjudged by Security Council. Moreover, the Charter is also vesting

the Security Council with power to urge the international community for

taking certain collective measures against the Infringer State. Moreover,

the Charter is making it incumbent upon every member State to

participate in such measures if recommended by Security Council.

International Court of Justice


When once the Nation States agreed to the jurisdiction of ICJ then its

decisions on the contentious points becomes binding, which also play a

kind of sanction behind enforcement of international law.

Special Sanction of Particular Treaties

Some treaties have also provided for sanctions in case of their violations,

e.g. Article 4 of International Labour Code and Article 14 of the

Convention on Narcotic Drugs, 1961 etc.

Some Other Sanctions

Beside the above sanctions, there are certain other sanctions which also

play some role in enforcement of international law, e.g. fear of suspension

of membership from United Nations Organization, fear of payment of

reparation, fear of punishment of war crimes by ICC and other tribunals

etc.

lecture notes on unit 01.docx

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