This essay has been submitted by a law student. This is not an example of the work written by our professional essay writers.
Published: Fri, 02 Feb 2018
RELEVANCE OF INTERNATIONAL LAW IN PRESENT CONTEXT
In this modern age the world has greatly shrunk as a result of scientific and technological developments drastically. As a consequence events in one part of the world have an immediate impact on the rest of the world. For this we can take an example of global economic or financial crisis which started in America and its impact was seen by the whole world including India, China and many other developed and developing countries. It resulted in the collapse of large financial institutions, the bailout of banks by national governments and downturns in stock markets around the world.
Similarly there are other issues such as maintenance of peace, security and sovereignty of states, Environment degradation, Terrorism, Piracy, Air and Space law, Law of seas, Airplane Hijacking, International trade and commerce and disputes related thereto, Economic-Social and Cultural developments of states, promotion, protection of Human Rights and International trade and business etc. These issues are global in nature and cannot be confined to and solved within territorial or political boundaries. Therefore, States maintain regular relations with other states because a modern State cannot lead an isolated life in the present context of world affairs. The more a State is civilized and perfect in its organization, the greater and more familiar shall be its intercourse with other States. This leads to that a Government of a State must not only conduct its internal affairs but also regulate its conduct towards the Governments and citizens of other States.
The harmony in political ideas, art and literature, scientific discovery, the exchange of embassy for the purpose of carrying on International intercourse and commerce all tends to knit States together in a social bond. Wendell Willkie’s conception of “One World” is no more a wishful thinking of a vain politician, but a hard reality and a plain truth, which cannot be ignored. Normally the inhabitants of one country frequently visit the territory of another, and no State can with any degree of practicability or effectiveness close its frontiers so as to prevent its citizens from travelling abroad or to exclude foreigners from its own territory. The need of foreign trade further necessitates the maintenance of relations with other States.
Just as men could not live together in a society without laws and customs to regulate their actions, so States could not have mutual intercourse without usages and conventions to regulate their conduct. International Law impinges on state sovereignty by creating new structures for regulating relations across international boundaries. International Law and International Norms limits the state sovereignty in another way. They create principles for governing international relations that compete with the core realist principles of sovereignty and anarchy. International Law derives not from actions of any legislative branch or other central authority, but from traditions and agreements signed by states. It also differs in the difficulty of enforcement, which depends not on the power and authority of central government but on reciprocity, collective action and international norms.
Without International laws and customs, it is impossible for states to maintain relations on the basis of peace, harmony and mutual co-operation. Rather, then the rule ‘might is right’ will prevail that would be destructive for the global peace and humanity.
>WHAT IS INTERNATIONAL LAW?
Body of rules, norms, and standards that apply between sovereign states and other entities that are legally recognized as international actors. The term international law was coined by the English philosopher Jeremy Bentham. Important elements of international law include sovereignty, recognition (which allows a country to honour the claims of another), consent (which allows for modifications in international agreements to fit the customs of a country), freedom of the high seas, self-defense (which ensures that measures may be taken against illegal acts committed against a sovereign country), freedom of commerce, and protection of nationals abroad.
In other words International law is the body of rules that governs the legal relations among international subjects. Earlier states were the only subjects of international law but now the position has changed gradually and now individuals, international organizations and non-state entities are also treated as subjects, which were earlier treated as objects of international law.
International law can be divided into three distinct legal disciplines:
>Public international law:
>It governs the relationship between provinces and international entities, either as an individual or as a group.
>Branches of public international law
International aviation law
International criminal law
International environmental law
International human rights law
International humanitarian law
International space law
International trade law
Law of state responsibility
The law pertaining to use of force
Law of the seas
Private international law or conflict of laws :
>This branch address the question of
>-in which legal jurisdiction may a case be heard, and
-the law concerning which jurisdiction apply to issues in the case.
The three branches of conflict of laws are
>Jurisdiction – whether the forum court has the power to resolve the dispute at hand
>Choice of law – the law which is being applied to resolve the dispute
>Foreign judgments – the ability to recognize and enforce a judgment from an external forum within the jurisdiction of the adjudicating forum
This branch of international law is related to regional agreements where the special distinguishing quality is that laws of nation states are held inapplicable when conflicting with a supranational law. For example-at present European Union law is the only example of a supranational legal organization.
>There are also two traditional branches of the field are:
>Jus genetium or Laws of nations.
>Jus intergentes or agreements among nations.
>Sources of international law.
>Sources of International Law are the materials and processes out of which the rules and principles regulating the international community developed. They have been influenced by a range of political and legal theories
>Similarly Article 38(1) of the ICJ Statute enumerates the sources of international law and provides that international law has its basis in international custom, international conventions or treaties, and general principles of law. A rule must derive from one of these three sources in order to be considered international law.
>1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
>a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
>b. international custom, as evidence of a general practice accepted as law;
>c. the general principles of law recognized by civilized nations;
>d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
>2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.
>The decision of the Court has no binding force except between the parties and in respect of that particular case.
>The INTERNATIONAL COURT OF JUSTICE (ICJ) was established in 1945 as the successor to the Permanent International Court of Justice (PICJ), which was created in 1920 under the supervision of the LEAGUE OF NATIONS (the precursor to the United Nations). The PICJ ceased to function during WORLD WAR II and was officially dissolved in 1946. The ICJ is a permanent international court located in the Hague, Netherlands, and it is the principal judicial organ of the United Nations (UN). It consists of 15 judges, each from a different state. The judges are elected by the UN General Assembly and the UN Security Council and must receive an absolute majority from both in order to take office.
>The ICJ has jurisdiction only over states that have consented to it. It follows that the court cannot hear a dispute between two or more state parties when one of the parties has not accepted its jurisdiction. This can happen even where the non-consenting party adheres to the court’s statute, for mere adherence to the statute does not imply consent to its tribunals.
>Evolution of International Law
>There was little scope for an international law in the ancient and medieval period, and its modern beginnings coincide, therefore, with the rise of national states after the Middle Ages. Rules of maritime intercourse and rules respecting diplomatic agents soon came into existence. At the beginning of the 17th century, the great number of small independent states, which were finding international lawlessness intolerable, prepared the way for the favourable reception given to the De jure belli ac pacis [concerning the law of war and peace] (1625) of Hugo Grotius, the first broad formulation of international law. Though not formally accepted by any state, his thoughts and observations were afterward regularly consulted, and they often served as a basis for reaching agreement in international disputes. The most significant principle he gave was the notion of sovereignty and legal equality of all states. Other important writers on international law were Bynkershoek, Martens, Wolff, and Vattel.
>Development to World War I
>The treaties concluded between the states contributed a lot to the growth of international law; these treaties include the states of Western Europe, then the states of New World, and at last the states of Asia and other parts of the world. The United States of America contributed much to the laws of neutrality and aided in securing recognition of the doctrine of freedom of the seas. The provisions of international law were negelected in the Napoleonic period, but the Congress of Vienna re-established and added much, particularly in respect to international rivers and the classification and treatment of diplomatic agents. The Declaration of Paris abolished privateering, drew up rules of contraband, and stipulated rules of blockade. The Geneva Convention (1864) provided for more humane treatment of the wounded. The last quarter of the 19th century saw many international conventions related to prisoners of war, communication, collision and salvage at sea, protection of migrating bird and sea life, and suppression of prostitution. Recource to arbitration of disputes became more frequent. The law making conventions of the Hague Conferences represent the chief development of international law before First World War. The Declaration of London contained a convention of prize law, which, although not ratified, is usually followed. Similarly at the Pan-American Congresses, many law making agreements effecting the Western countries have been signed.
>Effect of the World Wars
>In the First World War, no strong nation remained on the side-lines to give effective support to international law, and the concept of third party arbitration was again menaced. Similarly many of the standing provisions of international law were violated. Advance modes of warfare presented new problems in the laws of war, but attempts after the war to effect disarmament and to ban certain types of weapons failed, as the outbreak and course of Second World War showed. The end of hostilities in 1945 saw the world again faced with grave international problems, such as rectification of boundaries, care of refugees, and administration of the territory of the defeated enemy. The failure of the League of Nations led to the formation of the United Nations as a body capable of compelling obedience to international law and maintaining peace. After World War II, a worth noticeable development in international law was the definition and punishment of war crimes. Efforts for the codification of international law, proceeded slowly under the International Law Commission established in 1947 by the United Nation organisation.
>The nuclear and space age have led to new developments in international law. The basis of space law was developed in the 1960s under the efforts of United Nations organisation. Treaties have been signed mandating the globlization of outer space (1967) and celestial bodies (1979). The limited test ban treaty of 1963 prohibited nuclear tests in the atmosphere(open space), outer space, and in the water. The nuclear non-proliferation treaty,1968 attempted to limit the spread of nuclear weapons. The agreements of the Strategic Arms Limitation Talks, signed by the United States of America and the USSR in 1972, restrained the defensive and offensive weapon systems. It was first among many international arms treaties signed between the two nations until the dissolution of the USSR. Other treaties have covered the internationalization of Antarctica 1959, narcotic interdiction 1961, satellite communications 1963, and terrorism 1973. The Law of the Sea 1983 clarified the status of territorial waters and the exploitation of the high seas and seabed. Similarly Environmental issues have led to a number of international treaties, including agreements such as fisheries 1958, endangered species 1973, global warming and biodiversity 1992. Since the signing of the General Agreement on Tariffs and Trade (GATT) in 1947, there have been many international trade agreements. The European Union (prior to 1993, the European Community) has initiated toward the establishment of a regional legal system. In 1988 a Court of First Instance was established to serve as a court of original jurisdiction on some economic matters. The establishment of the International Criminal Court (2002), with jurisdiction over war crimes, crimes against human kind and humanity and associated matters, was a remarkable step forward in international law irrespective of the United States’ repudiation of the treaty under the President George W. Bush.
>History of public international law
>The history of public international law analyses the evolution of state practice and the doctrinal developments in international law. In this respect, it is different from private International law and comparative history of constitutional law. However international law in the modern sense of the word has only existed since about the 16th century, many historians of international law also take ancient history into account as a source for the early development of international legal principles. In that respect, important concepts are derived from the practice between Greek city-states and the Roman law concept of ius gentium (which regulated contacts between Roman citizens and non-Roman people). It can be said that the existence of international law is from time immorable.
>The ancient Greeks before Alexander the Great formed many small states that constantly interacted with each other. In peace and in war, an inter-state culture evolved that prescribed certain rules for how these states would act. These rules did not apply to interactions with non-Greek states, but among themselves the Greek inter-state community resembled in some respects the modern international community.
>The Romans did not developed an international law, as it acted without regard to any external rules in its dealings with those territories that were not already part of the empire. The Romans did, however, form municipal laws regulating the interactions between private Roman citizens and foreigners. These laws, called the jus gentium (as opposed to the jus civile governing interactions between citizens) codified some ideas of basic fairness, and attributed some rules to an objective, independent “natural law.” These jus gentium ideas of fairness and natural law have survived and are reflected in modern international law.
>After the fall of the Roman Empire and the collapse of the Holy Roman Empire into autonomous cities, principalities, kingdoms, states and nations, and for the first time there was a real need for rules of conduct between a large international community without an empire or a dominant religious leadership to moderate and direct international dealings.
>International trade was the real promoter for the development of objective rules and regulations of intercourse between states. Without a code of conduct, there was little to guarantee trade or protect the merchants or businessmen of one state from the actions of another. Economic self-interest is responsible for the evolution of common international trade rules, and most importantly the rules and customs of maritime law.
>Similarly exploration and warfare also became more involved and complex. The need for common international customs and practices became even more important. The Hanseatic League of the more than 150 entities in what is now Germany formulated many useful international customs and usages, which facilitated trade and communication among other things. The Italian city-states developed diplomatic rules, as they began sending ambassadors to foreign capitals. Treaties that is, agreements among states intended to be binding became a useful tool to protect trade andcommerce. The horrors of the Thirty Years’ War, meanwhile, created a yelling for rules of combat that would protect civilian communities.
>International practices, customs, rules,principles recognized by the civilized nations and treaties multiplied to the point of complexity. Several scholars sought to compile them all into an organized manner. The most important of these was Hugo Grotius, whose treatise De Jure Belli Ac Pacis Libri Tres is considered the beginning for modern international law. Before Hugo Grotius, most European thinkers treated law as something independent of mankind, with its own existence. Some laws were invented by men, but ultimately they reflected the essential natural law. Grotius was having the same opinion, except in one important respect, that is, Unlike the earlier thinkers, who believed that the natural law was imposed by god, Grotius believed that the natural law came from an essential universal reason which is common to all human beings.
>This view of the rationalist enabled Grotius to fix several rational principles underlying law. Law was not imposed from above, but instead derived from recognized principles. Foundation principles included the axioms that “promises must be kept” and “that harming another requires restitution”. These two principles have served as the basis for much of subsequent international law. Apart from natural-law principles, Grotius also dealt with international custom and usages or voluntary law. Grotius emphasized on the importance of international practices, customs and treaties—what “is” done—as opposed to normative rules of what “ought to be” done. This positivist approach to international law strengthened over time. As nations became the predominant form of state in Europe, and their man-made laws became more important than religious doctrines and philosophies, the law of what “is” similarly became more important than the law of what “ought to be.”
Treaty of Westphalia
The Westphalian treaty of 1648 were a landmark in establishing the principle of state sovereignty as a cornerstone of the international order. However the first attempt at formulating theories of international law occurred before this, in Spain, in the 16th century. Most popular among the early theorizers were the Roman Catholic theologians Francisco de Vitoria and Francisco Suárez. Suárez is especially notable in this regard in that he distinguished between ius inter gentes and ius intra gentes which he derived from ius gentium (the rights of peoples). Ius inter gentes corresponds to modern international law.
However the treaty is considered the beginning of the international system of laws. The concept of sovereignty which included territorial integrity, non intervention, and political self determination was recognized.
The German kingdoms, the Netherlands and Switzerland were recognized as sovereign states. Kingdoms were given the right to determine their own official religions, and citizens who did not practice the official religion were given the freedom of religion with some restrictions
>The League of Nations.
>The League of Nations came into being after the end of First World War. The League of Nation’s task was to ensure that war never broke out again. Many looked at the League to bring stability in the world.
>America entered in the First World War in 1917. The country as a whole and the president – Woodrow Wilson in particular – was horror struck by the slaughter and appalling atrocities that had taken place in the civilised part of the world. The only way to avoid a repetition of such a catastrophe, was to create an international body whose sole purpose and aim was to maintain international peace and security and which would settle international disputes as when they occurred in an amicable manner. This would be the task of the League of Nations.
>Post World War One as after the Thirty Years’ War, there was a demand for rules of warfare to protect civilian populations, as well as a will to stop invasions. The League of Nations, established after the First World War,tried to check invasions by signing a treaty agreement providing for economic and military sanctions against member states that used “external aggression” to invade or conquer other member states. An international court was established, that is the Permanent Court of International Justice, to address and arbitrate disputes between nations without resorting to war.In the meantime, many nations signed bilateral and multilateral treaties agreeing to recource to international arbitration rather than warfare to settle disputes and differences. International crises, however, demonstrated that nations were not yet committed to the idea of giving external authorities a voice in how states should have conducted their affairs. Hostility on the part of Germany, Italy and Japan went unchecked by international law, and it resulted in Second World War .
>The postwar era
After the Second World War, as after the First World War and the Thirty Years’ War, there was a very strong desire to never again endure the horrors of war endured by the civilian populations. The League of Nations was re-attempted through another treaty organization, the United Nations Organisations.
>The time after Second World War has been a highly successful one for international law. International cooperation has become far more common place, though of-course not universal. Importantly, nearly two hundred nations are now members of the United Nations Organisation and have voluntarily bound themselves to its charter. Even the most powerful nations have recognized the need for international cooperation, and have regularly sought international agreement and consent before engaging in acts of war.
>International law is, of course, does not only about the conduct of war. Besides most rules are concerning with the delivery of mail, trade, shipping, air travel, and the like. Most rules are adopted and followed regularly by most countries, because the rules make life easier for all concerned. The rules are rarely disputed. But some parts of international law are highly contestable, extremely political and hotly debated. This includes not just the laws of warfare but also such matters as fishing rights, concept of soverignty and state(whether both are same or different),concept of post soverignty(for example:establishment of European Union) etc.
>Modern customary international law
>An important development in modern international law is the concept of “consent.” Before Second World War, a nation would not have been considered to be bound by a rule unless it had formally agreed to be bound by it, or it was already customarily abiding by that rule. Now, however, merely consenting to an international practice is sufficient to be bound by it, without signing a treaty.
>An evolution of the positivist approach of Grotius, the concept of consent is an element of customary international law. Customary international law is essentially what states actually do, plus the opinio juris of what states believe international law requires them to do.
>Customary international law applies to every country, it dosen’t matter that whether they have formally agreed to it or not. At the same time, all countries participates in creating customary international law by their practices and decisions. As new rules are developed, countries accept, reject or amend them. When majority of countries are following a rule, everyone else will be held to it. Therefore, doing nothing is the same as consenting. Nations that did not take action may find themselves bound by an international law that is not to their advantage.
>Customary international law can be overruled, by a treaty. For this reason, much customary international law has been agreed to formally by treaties between nations.
>Modern treaty law
>Treaties are agreements or contracts among states. They are agreements by which the parties intend to be bound. If treaties are broken, their effectiveness is weakened because there is no assurance that future promises will be kept. Hence there is a strong incentive for states or parties to take treaties very seriously.
>Modern nations engage in a two-step process for entering into treaties. The first one is signing the treaty. Being a signatory to a treaty means that a country is willing to enter into an agreement. The second step is ratifying the treaty. A country that has ratified a treaty has gone beyond merely willing to enter into the agreement, and the country is now bound by it. This is a critical distinction, and sometimes a point of chaos. A country may be a signatory to a treaty for many-many years without ever having ratified it.
>Each country ratifies treaties in its own way. The United States Of America, requires the two-third majority of the Senate(the upper body of its legislature), for a treaty to be ratified; both the executive and the legislature must agree. While in Canada, on the other hand, ratification is strictly an executive action, and no approval of legislature is required before the country is bound by it.
>In this 21st Century treaties are interpreted according to the Vienna Convention on the Law of Treaties,1969. This convention is so widely accepted that even nations that are not parties to the convention follow it. The most important and sensible rule of this Convention is that a treaty should be interpreted literally and in the context of its aim,purpose, and in good faith. It also makes treaty authors spell out what they are trying to accomplish, to make interpretation easier, in a non-binding “preamble.”
>In the modern age, international law is more important than ever. Even the most powerful countries of the world rely thereon, seek to comply with it,and suffer consequences if they ignore it.
International law governs relations between states. It provides the basis for peace and stability and aims to protect and ensure the wellbeing of humankind.
Globalisation has not only increased the importance of international law but also the complexity of international legal issues. Switzerland, which is not a major power politically or militarily, is committed to ensuring that international relations are governed by law and not by force. For this reason, it takes an active part in the development of international law. This is in fact one of the main objectives of Swiss foreign policy: to safeguard the country’s interests.
>International law encompasses the various fields, including:
The prohibition of the use of force: States must resolve their differences by peaceful means.
Human rights: Every individual can demand certain fundamental rights (the right to life, freedom from bodily harm, personal freedom, freedom of opinion and conscience, etc.).
The protection of individuals during wars and armed conflicts: International humanitarian law defines the rules of war and especially those concerning the protection of civilians, the wounded and prisoners of war.
The fight against terrorism and other serious crimes: Efforts to deal with such threats can only be effective if they are founded on international law.
Environment: The more universal the rules on protecting climate and preserving natural resources are, the more efficient they are.
Trade and development: The Swiss economy earns every second franc abroad. A stable international order is an essential prerequisite for achieving this.
Telecommunications: A telephone call abroad would be impossible without a body of international law.
Transport: International treaties are essential for ensuring the safety of international air and rail travel.
International law is binding on a state inasmuch as it agrees to comply with specific international obligations. This condition is inherent in state sovereignty. In Switzerland, it is the two houses of the federal parliament and, through the institution of the obligatory or optional referendum, the people who decide on whether or not to accept international laws. For example, international treaties which affect national law are, like federal laws, subject to an optional referendum.
>General international law
General international law applies to relations between all states and subjects of international law, such as international organizations. It is universally binding. Its legal basis is normally international customary law and multilateral agreements.
Unlike general international law, particular international law – which is based on bilateral agreements or regional conventions – imposes obligations only on certain states or subjects of international law.
>As well as relations between states, modern international law also regulates:
>non-sovereign territories such as the oceans and outer space
>the rights and obligations of private individuals within individual states, for example with regard to human rights or offences against international law.
>International humanitarian law
International humanitarian law applies in armed conflicts and seeks to restrict suffering and unnecessary damage. It can be applied to all armed conflict, regardless of the legitimacy of the use of force or its cause.
International humanitarian law lays down particular obligations for the parties to the conflict:
The Four Geneva Conventions and Additional Protocols protect persons who are not participating in the hostilities or who are no longer combatants. Civilians, prisoners and other vulnerable persons must not be mistreated and the wounded must be cared for.
International humanitarian law restricts the means and methods of warfare. Most of the rules of international humanitarian law are regulated in the First Additional Protocol of 1977, the Hague Convention of 1907 and in the 1980 Conventional Weapons Convention and its five protocols.
>Rules of international humanitarian law
>Civilians and civilian objects may not be attacked in any circums
Cite This Essay
To export a reference to this article please select a referencing style below: