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For the purposes of this essay I would define primary as
being ‘fundamental...from which others are derived’.
Applying this definition I would identify the International Law
possesses by the world order in the international system.
Explaining this requires me to say—briefly—what I understand
the term to mean in the entire globalized system.
According to the Oxford dictionary of law, international law is refer to ‘jus
gentium, law of nations). —
“The system of law regulating the interrelationship of sovereign
states and their rights and duties with regard to one another. In
addition, certain international organisations (such as the United
Nations), companies, and sometimes individuals (e.g. in the sphere of
Human Rights) may have rights or duties under international law.
International law deals with such matters as the formation and
recognition of states, acquisition of territory, war, the law of the sea
and of space, treaties, treatment of aliens, human rights, international
crimes, and international judicial settlement of disputes. The usual
sources of international law are (1) Conventions and Treaties;
(2) international custom, in so far as this is evidence of a
general practice of behaviour accepted as legally biding”[i]
—(e.g. OPINIO JURIS - whether the opinion of law is compulsory),—
“An essential element of custom, one of the four sources of International law
as outlined in the Statute of the International Court of Justice. Opinion juries requires that custom should be regarded as state practice amounting
to a legal obligation, which distinguishes it from mere usage;[ii]
(3) the General
principles of law recognized by civilized nations.
International law is also known as public international law to distinguish it from Private
international law, which does not deal with relationships between
states.[iii]
“The term ‘international law’ was first used by
Jeremy Bentham in 1780 in his Introduction
to the Principles of Morals and Legislation. Since about 1840, in the English and Romance languages it has
replaced the older terminology ‘law of nations’ or ‘droit the gens’
which can be traced back to the Roman concept of ius
gentium and the writings of Cicero. In the German, Dutch,
Scandinavian and Slavic languages the older terminology is still in use
(‘Vökerrecht’, Volkenrecht’, etc.)”.
Until the period between the two World Wars, writers found no
difficulty in defining (public) international law, in one formulation or
another, as the law that governs the relations between states amongst
each other. The prevailing positivist doctrine of the nineteenth century
and first half of the twentieth century held that only states could be
subjects of international law, in the sense of enjoying international
legal personality and being capable of possessing international rights
and duties, including the right to bring international claim.”[iv]
Today international law refers to those rules and norms
which regulate the conduct of states and other entities which at any
time are recognized as being endowed with international personality,
e.g. international organisations and individuals, in their relations
with each other.— “Such a
definition takes account of international law’s ‘youthfulness’ and
recognises that new actors may be required to participate on the
international stage. States, although they remain the primary subjects
of international law, are no longer its exclusive subjects as they one
were. International law was initially concerned exclusively with
regulating inter-state relations and then only in respect of diplomatic
relations and the conduct of war. This is no longer true.
International law has expanded both in terms of its
subjects and its content. Major problems of international concern have
been tackled collectively by states. This has proved, for example, more
resource effective than attempting individual state action. The
consequence has been a proliferation in the number of international
organisations in the years since 1945. Modern technology has brought
states and their populations into closer and more frequent contact with
each other and rules have evolved to regulate such contact. The
subject-matter of international law has correspondingly expanded and
international law now has within its ambit issues which were
traditionally regarded as being exclusively within a state’s domestic
jurisdiction, e.g. treatment of one’s own nationals. This has been
repercussions for individuals. They are now recognized as possessing
some, albeit limited, international personality.
The traditional definition of international law, namely a body of
rules governing the relations of independent states in times of peace
and war, is too rigid and out moded.
A definition of international law must accommodate the
developments which the international legal system has witnessed in the
twentieth century and must reflect international law as it is today.”[v]
Thus, according to which international law:
“consists of
rules and principles of general application dealing with the conduct of
states and of international organisations and with their relations inter
se, as well as with some of their relations with persons, whether
natural or juridical.”[vi]
Perhaps the most commonly posed question about
international law is whether it is or ever can be ‘law’ in the same
way as domestic or international law. The contrast implied is that
between a predictable, enforceable law based on explicit legislation and
capricious, unenforceable law bases on the actions and interactions of
states and their representatives.— “International law, it has often
been remarked, exists between states rather than above them. It can
readily be seen that this view of international law is closely linked to
the traditional, state-centric view of the international arena.”[vii]
In this context, the actions of states constitute both
the primary source of the law and the primary constraint upon its
effectiveness. The image conjured up, as is that world system as a kind
of anarchy, in which the application of the law reflects the emphasis on
self-help and the diffusion on power among states, and in which states
are effectively judges in their own causes. In this context, it is only
to be expected that the interests and the relative powers of states will
have a formative role in the development of law. To put it simply, the
evolution and the effectiveness of international law will largely be a
mirror of the concerns and the commitment of the major states.
The general principles of international law in its
traditional form are those with which much states-centric analysis is
concerned: the primacy of the sovereign state as an organisation, the
competitive struggle for power and influence between states and the
attempt to achieve limited order between states in an ‘anarchical
society’. —“Thus, the sources of international law are rooted deep
in the state system and the law itself reflects the evolution of the
system. Agreements between states are based on the sovereign equality of
those concerned and take precedence over any private agreements or
arrangements. They are often concerned with the regulation of
competition between states, for territory or for political status, and
they do not concern themselves with the internal affairs of members of
the state system. They are also ultimately subject to the perceptions of
vital national interests, which can lead states to disavow solemn
obligations or perhaps to resort to violence.”[viii]
One cannot get through a foreign policy debate these
days without someone proposing the rule of law as a solution to the
world’s troubles. How can
U.S. policy on China cut through the conundrum of balancing human rights
against economic interests? Promoting
the rule of law, some observes argue, advances both principles and
profits. What will it take
for Russia to move beyond Wild West capitalism to more orderly market
economics? Developing the
rule of law, may insist, is the key.
How can Mexico negotiate its treacherous economic, political, and
social transitions? Inside
and outside Mexico, many answer: establish once and for all the rules of
law. Indeed, whether it’s
Bosnia, Rwanda, Haiti, or elsewhere, the cure is the rule of law, of
course.
The rule of law can be defined as a system in which the
laws are public knowledge, are clear in meaning, and apply equally to
everyone. The enshrine and uphold the political and civil liberties that
have gained status as universal human rights over the last haft-century.
In particular, anyone accused of a crime has a right to a fair, prompt
hearing and is presumed innocent until proved guilty. The central
institutions of the legal system, including courts, prosecutors, and
police, are reasonably fair, competent, and efficient. Judges are
impartial and independent, not subject to political influence or
manipulation. Perhaps most important, the government is embedded in a
comprehensive legal framework, its officials accept that the law will be
applied to their own conduct, and the government seeks to be
law-abiding.
The relationship between the rule of law and liberal
democracy is profound. The rule of law makes possible individual rights,
which are at the core of democracy. A government’s respect for the
sovereign authority of the people and a constitution depends on its
acceptance of law. Democracy includes institutions and processes that,
although beyond the immediate domain of the legal system, are rooted in
it. Basic elements of a modern market economy such as property rights
and contracts are founded on the law and require competent third-party
enforcement. Without the rule of law, major economic institutions such
as corporations, banks, and labor unions would not function, and the
government’s many involvements in the economy—regulatory mechanisms,
tax systems, customs structures, monetary policy, and the like—would
be unfair, inefficient, and opaque.
The rule of law is scarcely a new idea. It is receiving
so much attention now because of its centrality to both democracy and
the market economy in an era marked by a wave of transitions to both.
Western observers say that enhancing the rule of law will allow states
to move beyond the first stage of political and economic reform to
consolidate both democracy and market economics.
The move from describing the world to prescribing for
it forms the core of international law. The shape of the international
system during the Cold War reinforced this realist perspective.
International institutions and judicial bodies such as the United
Nations and the International Court of Justice (the World Court) were
hobbled by both the bipolar split in world politics and its aggravation
of tensions between the developed and developing worlds. Responding to
the inability of organisations to exercise their mandates, or of
treaties such as the General Agreement on Tariffs and Trade and the UN
Convention on the Law of the Sea to garner global endorsement, legal
scholars asked what states could do alone, largely accepting as fixed
the limits on what they might do together.
Today, the end of the Cold War has loosened many of the
blockages to the international lawmaking and implementation. Although
legal scholars still ask what states can do on their own—pass
extraterritorial laws, use force, or prosecute war criminals—they do
so assuming that coordinated action is now more feasible than in the
past. Global and regional treaties such as the Chemical Weapons
Convention, the Convention on the Prohibition of Anti-Personnel Mines,
the Maastricht Treaty, and the North American Free Trade Agreement now
serve as the starting point for scrutinizing state behavior according to
some objective standard.
The ground seems ready then for an acceleration of this
century’s great trend in international law: the increasing
international regulation of more and more issues once typically seen as
part of state domestic jurisdiction. But any attempt to create the
lofty, supranational legal edifice idealized by some of the field’s
practitioners and scholars promises to the problematic at best. Once
paralyzed by the deadlock between East and West, and between North and
South, the international legal system must now contend not just with the
challenge of persuading new states such as Belarus or Croatia to comply
with established norms but of coping with Somalia and other failed
states, whose circumstances make a mockery of international rules.
International law must seek to embrace a growing range of forms, topics,
and technologies, as well as a host of new actors. And as it moves
further away from strictly “policy” concerns—the treatment of
diplomats or ships on the seas—to traditionally domestic
areas—environmental or labor standards—its proponents must
increasingly confront new obstacles head-on.
Therefore these changes are the new theoretical approach of
international law because they are fundamental...from which
others are derived.
Notes
and References:
[i]
Oxford Dictionary of Law, Edited by Elizabeth A. Martin,
Oxford University Press, Fourth edition 1997, p.240-241.
[ii]
Oxford Dictionary of Law, Edited by Elizabeth A. Martin, Oxford
University Press, Fourth edition 1997, p.323.
[iii]
Oxford Dictionary of Law, Edited by Elizabeth A. Martin, Oxford
University Press, Fourth edition 1997, p.240-241.
[iv]
Peter Malanczuk, Akehurst’s Modern
Introduction to International Law, Seventh edition 1997
published by Routledge, p.1.
[v]
Rebeccca M. M. Wallace, International Law- A Student Introduction , Published by London
Sweet & Maxwell, 1986, p.1-2.
[vi]
the American Law Institute of the Foreign
Relations Law of the United States, ‘Restatement (Third)’, see
in Peter Malanczuk, Akehurst’s Modern
Introduction to International Law, Seventh edition 1997
published by Routledge, p.1.
[vii]
Brian Hocking & Micheal Smith, World
Politic, Second edition published 1995 by Printice
Hall/Harvester Wheatsheaf, p.288.
[viii]
Brian Hocking & Micheal Smith, World
Politic, Second edition published 1995 by Printice
Hall/Harvester Wheatsheaf, p.289.
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