Historical origin
International
law is the term commonly used in referring to the rule and regulations that
govern the conduct of independent nations in their relationship with one
another. Mankind’s long march, from primitively to civilisation, the need for
order and a regulated form of behaviour has remained vital. According to
Malcolm Shew.
… law is that element which binds the members of the community
together in their adherence to recognized values and standards…1
Law is a binding lament within members of society
binding them together in their adherence to recognised values and standards of
behaviour. International law has a similar character of regulating the conduct
of participants in the international society. These participants however are
not individual citizens but nation states and other actors duely recognised as
having international personality. International law having international personality.
International having international personality. International law differs from
other legal systems in that it primarily concerns itself with states and other
international bodies rather than private citizens.
The
term international law can refer to a number of distinct legal disciplines
these are.
1. Public
International law which govern the relationship between states and
international entities either as an individual or as a group. It also regulates
operations of international institutions. It involves the following specific
legal fields such as the treaty law, laws of the sea, international criminal
law and the international humanitarian law. Public international law may be
universal, regional or ideological.
2. Private
international law also known as conflict of laws in which foreign elements
intrude within domestic legal systems raising the question of which lgela
jurisdiction may be applied in hearing or determining a case on one hand and
the law concerning which jurisdiction may apply to the issues in the case.
3. Supranational
law or the law of supranational organisations which presently concerns regional
agreements where special distinguishing quality is that law of nation states
are held inapplicable with a supranational legal system. EU laws are good
example of supranational law.
4. Jus
gentium – Latin for the laws of nations. This was originally the part of roman
law which the roman empire applied to its dealings with foreigners especially
provincial subjects. The jus gentium gradually became the common law of the
roman empire and gained the reputation of universal application. The jus
gentium was deemed to enshrine national principles which were considered not
only applicable but commonly acceptable to all civilized nations. In later times,
the Latin term came to refer to the natural or common law among nations
considered as states within a larger human society especially governing the
rules of peace and war, national boundaries, diplomatic exchanges and
extradition which combines with jus inter gentes to make up public
international law.
5. Jus
inter gentes – simply known as agreements among nations-jus inter gentes is the
body of treaties, UN conventions and other international agreements. It was
originally a Roman Law concept but later become a major part of international
law.
6. Pacta
Sunt servanda – This is Latin word for “agreements must be kept”. It is a basic
principle of civil law and of international law. The principle believes that
agreements between parties are law and non-fulfilment of respective obligations
is a breach of the pact. This is a general principle of correct behaviour which
aims for efficacy of the whole system and requires that eventual disorder may
be punished by law. Pact sun servanda is based on good faith. Every treaty in
force is binding on the parties and this must be preferred by them in good
faith. This entitles states to require that obligations be respected and to
rely upon their being respected. To rely upon their being respected.
7. Jus
Cogens, also known as “compelling law’ or “strong law” is a principle of
international law considered to be very fundamental. It is enshrined in Article
53 of the Vienna convention on the law of treaties. The rule of jus Cogens
require certain code of behaviour form states in respect to certain norms and
situations. Jus Cogens covers a list of such aims and international wrongful
acts as war of aggression, war crimes, crimes against humanity piracy genocide,
apartheid, slavery, torture pollution of the atmosphere, etc. JUS Cogens can
override other sources of international law including even the charter of the
United Nations.
INTERNATIONAL LAW COMPARED WITH MUNICIPAL LAW
As
earlier noted, international law is an approach to the maintenance of order at
the international level. At the domestic level, law play a regulatory role and
checks interaction between individuals, groups and corporate entities and the
state itself. Law, whether domestic or international has a vital function which
is to change a situation which is no longer acceptable to the society and usher
in never and more acceptable rules of behaviour and conduct. Law delimits the
powers of governments, organisations groups or individuals vis a vis other
participants within the system. Law exists to create order because where there
is no law the society lapses into lawlessness reminiscent of anarchical
situations characterized by the survival of the fittest.
At the domestic level it is possible to have
legal institutional structures whose duty it is to perform the functions of
ensuring that societal laws are obeyed in every setup. At the international
level, it does not appear quite so because of the complex nature of the
international environment. Whereas everyone is subject to the law of the state
at the domestic level, same cannot be said of the international system.
International
law is not oblivious of domestic law and vice versa. Each acts with respect to
the other. The general rule of international law however is that a state cannot
plead a rule or a gap in its own
domestic law as a defence to a claim based on international. States would be
regarded as important factors in international law because it states do not
exist, the question of international law would not arise. In domestic law, the
individuals becomes the prime factor.
From
the congregation of analysis, it is important to note that domestic law will
form time to time fail to reflect the correct rule of international law. This
however, does not necessarily mean that the domestic laws of a state will be
structured or allowed to break international law. More often than not the
disparity between domestic law and international law simply means that the
individuals state may be unable to exercise rights which international law
entitles but does not require the individual state to exercise.
In
situations where domestic law is capable of resulting in a breach of
international law, it is the application of the rule, and not its were existence which normally constitutes the
breach of international law. If however the enforcement of such a rule is
undertaken in such a way that no breach of international occurs, then there
would be no friction. American declaration in 1996 that it would penalise
companies doing business with parish states typifies this. The contention
became how far America could go in enforcing this rule beyond its national
boundaries without the risk of breaking international law when it encroaches on
the sovereign rights of other states. This position was vigorously resisted by
France in the case of Iran and total oil in 1997.
Obedience
in any legal system, be it international or domestic is based on a combination
of voluntary compliance and coercion. Voluntary compliance occurs when the
subjects obey the law simply because they accepts its authenticity and
legitimacy. They must also accepts its necessity for the reasonable conduct of
society. Coercion on the other hand is the process of gaining compliance
through other means-such means may involve threats of violence, punishment,
imprisonment, economic sanctions, physical or military intimidation or other
forms of punishment.
THE LEGAL CHARACTER OF INTERNATIONAL LAW
Over
the years, there has been a lot of controversy among scholars of international
polities over the legal character of international law. There has been a raging
debate between those who argue that international law is not a true law and
those who believe that it is. This debate involves two schools of thought –
those known as Austinians and the other
called the Historicist.
1. The
Nastinian school represents the views of John Austin, an oxford scholar who
contends that international law is not a true law but a more code of morality
which states are expected to comply with. He argued that for a law to be
regarded as a true law and for such law to have a binding effect, it must
emulate from an authoritative and recognised source- a sovereign.
The
Austinians argue that law involves a superior inferior relationship for
purposes of authenticity and credibility. The law emanates from a source which
could be the Monarch, parliament or president and is passed down to the
citizens who are duty bound to respect and comply with such laws. The
Austinians school argued that there must be in existence the apparatus of state
of enforce laws that are made by the super-ordinate body. At the domestic
level, there is the police, the courts and the prison to check the incidence of
infraction of the law and to punish offenders. They hold that in the international environment, it is
impracticable to arrest, put on trial or jail a state that goes against the
provisions of the so-called international law. The Austinians further contend
that international law would be violated with impurity since it does not
operate within a context where it can be enforced. States are subjects of
international law and since all states are equal, non can improve on the other
or seek to bring an rand member to book.
Furthermore,
the Austinians argued that Jurisdiction at the domestic level is compulsory
since no one state can unilaterally opt out of the jurisdiction of the law. At
the domestic level, jurisdiction of the state has no exemption on the citizens
whereas such compulsory jurisdiction is lacking at the international level.
The
Austinian declared that what is largely regarded as international law is merely
a moral guide for states in their relationship with one another. They concluded
that what is ordinarily another. They concluded that what is ordinarily called
international law would better b e seen as “international morality” which
states are at liberty to accept or reject as it pleases them in the pursuit of
their national interest.
The historicist - on the other hand of this argument are
those referred to as the historicist. This group look at international law from
historical and evolutionary angle. The historicist criticised the ideas
espoused by the Austinianss on ground of its ever simplification and for
placing too much emphasis on the role of sanction as a linkage to every rule.
The
historists argue that international law is a true law despite the short coming it has been
faced with especially at its evolutionary years. They argue that international
law should be accepted as true law because, like domestic law before it, it
evolved from contentions and customes based on the accepted norms of the
behaviour in the international environment. The maintain that law at the
international level is just passing through the same trial process as domestic
law did during its period of evolution. The hsitorists contend that no state
emerged with a constitution or legal code at the same time but that while
states came into existence their laws and constitution were given time to
evolve, grow and mature to the level of effectiveness. They argue that the
English common laws as well as the civil laws of the Romans Undernet various
processes of evolution and maturity. In effect, the historists believe that if
given the same level of patience and encouragement, international law will,
sooner or later, attain the height that domestic laws of nations have attained
in regulating the conduct and behaviour of states. The historists insist than
even though there is no central government, police; prison or court systems at
the international level, states do comply and observe the provisions of
conventions and treaties which they are obliged. Such compliance is necessary
because they realize the benefits desirable from doing so and the loss
sustainable from not doing so. In the global environment the need to maintain a
stable, sustaining and result-oriented international system has become a common
goal for all humanity.
SOURCES OF INTERNATIONAL LAW
Sources of international law have to do with the
materials and processes out of which the rules and principles regulating the
international system developed. This process has been long and complicated and
have been shaped and conditioned by an array of both political and legal
theories. The consensual new of international law demands that states must take
into account its obligations to and agreement with other even in pursuit of her
own goals and objectives in the open arena. This was further reflected in the
statute of the permanent court of Justice (league 1920) and the international
court of justice (1946).
Public
international law or international public law concerns the relationship between
the entities or legal persons which are considered the subjects of legal
persons which are considered the subjects of international law including
sovereign nations the legal status of the Holy see international organisations
especially inter governmental organisations such as the UN and in the same
case, national liberation movements, the sources of modern international law
may be summarized as follows:
1. International customs or customary
international law- international custom is a consistent behaviour of states over a period of time which has
been generally accepted and as such can be assumed that every civilized state
would accept such general practice. Such consistent practices may also be
accompanied by opinion juris (an opinion of law or necessity) this is the
belief that an action was carried out because it was a legal obligation.
Customs take a long time to evolve which makes the area of customary
international law a bit problematic customs represent an important part of
international law and over the years a lot of progress has been made in trying
to bring some of those accepted norms which states how try to elevate to the
status of treaties and international agreement.
2. Treaties and Agreements: these are
codification contained in conventional agreements which are generally referred
to as treaties. Treaties are the most important source of international law.
Treaties are agreements willingly and voluntarily entered into by states (2 or
more) and which has binding effects. Treaties, when accepted and seen as
workable can be embraced by a large number of states in the international
community and this became accepted as
parts of international law.
3. General Principles of Law Recognised by
Civilised Nations: although this language sounds vague, it does have its
relevance. Amongst all it allows external sources of law such as “morality” to
come into effective consideration. The principle of “equity” that is what is
considered fair when no legal standard exists also has same application under
general principles. Iraq’s aggression against Kuwait in 1990 was a clear
violation of this basic principle. This general principle also give evidence to
the arguments of the natural lawyers. Those generally accepted principled of
law was largely discovered by the Romans. Civilisation of nations can make it
possible for judges to make use of general principles in the absence of
evidentiary comments in trying international cases.
4. Article 59 of the ICT. This article may
not be seen or used as having binding effect on all states since its
jurisdiction is not compulsory. Article 59 of the ICT however becomes binging
when they relevant states or parties to a conflict agree to it states can agree
to have arbitration panels look into a dispute and the decision of such panels
can be seem to form part of the provisions of international law. Similarly, the
ruling of the ICJ and other international tribunals and even domestic court,
when they apply international law. Help shape the body of how that exist.
Article 13 of the UN charter obligates the general assembly to initiate studies
and make recommendations which encourages
progressive development of int law and its conditions.
5. Judicial Decisions And Writings the
teachings writings opinions and decisions of highly qualified jurists and
internationally recognised legal personnel and publicist and the subsidiary
means for the determination of the rules of law and precedents. Such reinsured
experts such as Hugo Grotins, Alberico Gentili, Francisco Vitria, etc, do not
make international lane they are merely recognised in respect to their research
and the competence of their treaties, their resort to rational reasoning an
sound judgement and their general ability to show clearly and concisely, what
ought to be. The works of such renowned scholars are often a reference points
by the courts in their deliberations these academic and expert legal opinions
are sometimes referred to as “soft law”.
6. Determinations of the Organs of
International organisation: evidence of consensus or inter-practice can
sometimes be derived from intergovernmental resolutions. The decisions of
international organisations such as EC, NATO, OAS, ECOWAS, etc shape behaviour
of their members and n a very large measure affect the behaviour of
non-members. Their declarations could be understandably accepted as source of
international law. The league of nation and the united nations working through
their various organs established much of the basic foundations for the
development mover of international law.
7. International Conferences- Global
conferences seminars and workshops are held from times to time to deliberate on
issues affecting the international environment. From these conferences, ideas
are harnessed, agreement reached and new codes of behaviour may be adopted.
Diplomatic immunities and privileges all resulted from the works of
international conferences. The most remarkable of these is the Vienna congress,
1961. the international civil Aviation conferences held in Chicago in 1994
established what has come to be generational industry.
8. UN. Charter- the UN charter has added a
lot of impetus to the development of international law, including advisory and
non- binding standards such as the universal declaration of Human Rights.
Several principles of international law have been established through
international agreements. These include the heneva conventions on the conduct
of war and under agreements on ILO, WHO, WTO, IMF, UNESCO, world intellectual
property organisation the international telecommunications union, etc.
The
idea that laws can came from the united Nations General Assembly or any other
international representative assembly is best with controversy in any case,
members of the UN one duty bound to respect the decision of the general
Assembly and the security council, given this obligation, it is possible to
argue that these international bodies are quasi-legislative. The fact that
their resolutions and mandates are often violated does not mean that these laws
does not exist.
Law
in general terms is a product of society at both the domestic and international
levels. Law is an instrument of politics and it reflects the configuration of
socio political force often at play in the international level. As
international evolves, it can be seen as a process of political evolution. The
flexibility introduced into the concept of international law is also
remarkable. The various legal system s in the world-traditional theocratic,
western, Islamic, Roman, Oriental, etc.