International Law – I
Traditional and Modern Approaches to International Law
ASHISH KUMAR SINGH IV Yr. B.A. LL.B. (Hons.)
I.D. No. 1556
Introduction Traditional Approach to International Law was limited to the relationship amongst states in the light of diplomatic relations. The scope was very limited. Traditional Approach to International Law is based on the concept of state practice where the custom plays a very important role and is the governing factor behind each of actions which the state undertakes. This paper analyzes various aspects of this traditional approach along with the components of custom and its advantages and disadvantages. A co-relation between sovereignty of states and traditional approach can be seen. The second part of the paper deals with the modern approach to international law which can be said to have been emerged after the Second World War. This phase saw the inclusive nature of International Law with the rise in the number of nations which became active in the International arena as well as subject matter of International Law increasing from merely diplomatic relations to welfare issues. The modern approach is marked by the rise of opinio juris over state practice and the ramifications of the same over the discourse of International Law can be seen in this paper.
2
Research Methodology AIMS AND OBJECTIVES The aim of this paper is to analyze the traditional and modern approaches to International Law. It also looks at the recent changes which International Law has gone through the changes in its approaches.
SCOPE AND LIMITATIONS The paper attempts to covers aspects related to traditional approaches to International Law and looks at various elements of it. It looks at the importance of custom in International Law. The modern approach and its various characteristics have also been looked into in the paper. The limitation of this paper is that it’s limited to a theoretical discussion of these concepts.
RESEARCH QUESTIONS The paper attempts to answer the following research questions: 1. What is the traditional approach to International Law?
2. Which are the elements of the traditional Approach? 3. What is Modern Approach to International Law? 4. What are the reasons for such a change in the approaches to International Law?
MODE OF CITATION AND STYLE OF WRITING This paper uses a uniform mode of citation. It employs descriptive as well as analytical styles of writing.
3
SOURCES The paper uses secondary sources.
Traditional Approach to International Law International Law when it arose was limited to the relation of states amongst each other and the interface of the International Law itself was limited to very limited fields such as diplomatic and interstate relations. This limited interface amongst the states can be traced back to the doctrine that each state is a sovereign in its own capacity. Each of the country has a right to deal with the internal situations which arise and any outside interference could be seen as infringement of this sovereignty which the each state enjoyed. So, the states were willing to interact due to diplomatic reasons and interstate conflicts but the interaction was vastly limited.1 The rules which governed such an interaction in the International Law arena were that of state practice. The meaning of state practice is that each state respected the custom which was being followed for interact for a long period of time. The rules of diplomatic coexistence had been consolidated through the practice which the states’ followed. This constituted bulk of the International Law.
The traditional approach towards International Law laid emphasis on state sovereignty and related to the nationalist legal philosophy that state has the complete power to regulate the affairs inside its territory. The first mention of a dispute resolution mechanism was in the Alabama decision, where certain British ships were dispatched from the Great Britain during the Civil War even after opposition 1
D.W. Greig, International Law, (London: Butterworths, 2007) at page 4.
4
from the United States were used by the Confederate. The United States seek compensation from Great Britain for this loss. Both the parties subjected themselves to arbitration.2 Hence, the dispute resolution mechanism amongst the states earlier was subject to the bilateral treaties and it was marked by any specific bodies for reaching a viable conclusion.
Another important interaction which the states had in the traditional approach was during the period of war. So, international law initially wanted to codify the law related to laws to fulfill two principles. Firstly, humanization of warfare amongst the states. Secondly, distinction between just and unjust wars. Therefore, the Hague Warfare Convention came into being which was a result of a coming together of states for a common purpose. But, the purpose was hugely limited. State practice was the governing factor for the interaction amongst the states. State practice has a descriptive accuracy as it had evolved over a long period of time. It takes time for a custom to develop hence it has proved itself on practical basis and states’ compliance with its conduct.3 The reasons why state practice was relied upon were –
Firstly, continuity with past actions can be achieved if state practice is given reliance because of the above mentioned reason.
Secondly, reliable prediction of the future action of the states could be told which makes International Law ‘certain’. But, how far is ‘certainty’ the only test for compliance is a question which has to be looked into.
2
Wolfgang Friedmann, The Changing Structure of International Law(Bombay: Vakil, Feffers & Simons Pvt. Ltd., 1964) at page 2. 3 Anthea Elizabeth Roberts, Traditional and Modern Approaches to Customary International Law: A Reconciliation, Vol. No. 95(4), THE AMERICAN JOURNAL OF INTERNATIONAL LAW page 757, page 760 (2001).
5
The critique of the traditional custom is that there is no process by which custom is formed which makes the process inherently uncertain. There is no guidance as to the amount of the time which has to pass for a custom to be formed. There is no surety as to the frequency and continuity which a practice has to filter through in order to become a custom which could be applied in International Law.4 Also, the repeated practice process is too slow and clumsy to meet the demands of the latest developments which a law might require at a global level.
Besides, these substantive problems there are various procedural inadequacies which are contained when relied on state practice. These procedural inadequacies include that these customs are not apolitical, but based on the principle of hegemony. The reason which is cited for this that these customs are formed by the practice which has been followed by some of the powerful countries of the world and does not reflect the interests of the whole world. Taking for example, newly formed countries have no option but to follow the principles which has been laid by other countries as they are not in the position to have a separate state practice due to presence of a compelling custom.5 Hence, the traditional approach which was based on reliance on state practice more than opinio juris has its inherent problems which have been described in this chapter.
Another important feature of the traditional approach to International Law was the presence of less number of treaties and presence of mostly bilateral treaties the subject matter was also limited. The presence of less numbers of treaties led to less interaction and understanding amongst the subjects of International Law i.e. the states. Less interaction led to more conflict situations and less co-operations on issues of international interest. But, it was soon felt during and after the First World War, that the need of hour 4 5
Supra note 2, at page 4. Supra note 2, at page 760.
6
is multilateral treaties to support the interest and protect the states from aggression. It all began with states coming together fight a common enemy and the mutual support which was needed to tackle the problem.6 Also, with the rise in industries and trade amongst countries it became necessary to interact as the state could no longer depend itself for the raw material and needed new markets for its finished products. This could only be achieved through mutual co-operation amongst the states. This gave a way to the existence of multilateral treaties which is the hallmark of the modern approach to International Law.
To express the foundations of traditional approach to International Law, it should be kept in mind that during the initial stages only a few countries in Europe along with the American nations which were later a part in the 19th century. The rest of the world had little or no role to play which is reflected in the policies and the approaches that was taken in the traditional approach where more attention was paid on state practice rather than opinio juris.
The small number of European and American nations which has been discussed above was in a way forming the state practices for all over the world. But the characteristic of this traditional was that they had no concern for each other’s internal political or social systems. There was a lot of similarity in the state units as they were mostly monarchy or a form of monarchial system. 7 There was a minimum concern with the economic and social ideology of the nations which were participating or states which entered into the field of International relations.
Another important characteristic of the traditional approach was the importance being given to states as being the actors of International 6
B.S. Chimni, International Law & World Order: A Critique of Contemporary Approach (New Delhi: Sage Publication, 1993) at page 19. 7 Supra note 2, at page 4.
7
Law. This approach gained importance because of the limited interaction amongst the individuals of the states and also because of state sovereignty states were reluctant to let the individuals become actors in the international law arena. Hence, only the states had rights and duties under the International Law regime.
The traditional approach to International Law was based on the theory which was propounded by Grotius which established the generally accepted rules of conduct of international diplomacy. The rulers which represented the states had absolute power due to the absence of a democratic system which was in place. The international law mainly concerned itself with adjustment of territorial disputes or related matters, the legal status of high seas, heads of the governments and their diplomatic representatives. Immunity here means that by custom a government or its representatives may not be sued in the courts of another country.
8
The traditional approach also included the recognition of states and the governments and protection of one sovereign territory of another along with the regulation of war and neutrality.
The most important feature of the traditional approach to International Law was that it did not concern itself with the welfare of people or to the economic conditions which prevail in nations but mostly dealt with diplomatic issues and there was no emphasis on the welfare aspect. But another thing that has to be kept in mind that the states had a custom that they will not destroy their neighbors through war which was followed. Taking for example Spain, France and Britain were very powerful nations but did not imply a threat of destruction of other states9.
8
Malcolm N. Shaw, International Law, 5th Ed. (New Delhi: Cambridge University Press, 2003) at page 5. 9 Supra note 3, at page 761.
8
Modern Approach – A result of the rise of Developing Nations at the Global Arena As it can be seen from the analysis of the approaches to International Law that in the traditional approach there were less number of players that were involved in the making of International Law and hence the arena was limited to that of diplomacy and interstate relations. But, after the wave of democracy that has struck the world a change is seen in the approach as well.10 Earlier during 10
Supra note 2, at page 4.
9
colonialism, few power centers were present the world was controlled by few Western Countries and others were insignificant. The demand for raw material and other commercial interests were met through the exploitation of the colonies which these powerful nations had. Hence, there was less or no need to interact amongst each other.11 Also, there was a strong ideological control of these nations over the customs of International Law. But, after new countries emerged and colonies were freed, there was a need to interact with them for meeting demands and supply of the industries. For giving them a voice, United Nations included many countries which in theory had equal status amongst states. Hence, arose a new approach to International Law which was more just and inclusive. It can be seen from the various changes which have been described in this chapter as to how inclusion of new countries had made quite a stir in the International Law arena.
I.
Widening Base of Countries
It has been seen after the First World War and the later developments that there has been a greater participation of the states where were previously unknown the international arena. The primary reason for this is the new wave of democracy and states gaining independence from colonialism. This led to creation of more states and hence the need for greater participation. Also, with the rise in industrialization it was clearly felt that the countries can no longer claim to be aloof in the international arena as co operation was necessary for trade. More than trade the First World War and its aftermath created a consensus amongst the nations that in order to have peace and stability in the world and to protect their own sovereignty it was necessary to form alliances and reach a common consensus.12 With more countries joining it became increasingly difficult to rely on the earlier principle of state practice. The reason 11 12
Vaughan Lowe, International Law (Oxford: Oxford University Press, 2007) at page 5. Supra note 8, at page 6.
10
given for that it was uncertain and took long time to form. Moreover, there was an argument about the neutral nature of such state practices which were previously followed by only a small number of powerful countries. Hence, the reluctance of countries to follow such state practice gave opinio juris more importance over state practice.
II.
Rise in the number of Multilateral Treaties
With the rise in number of countries gaining importance in the international arena there was a huge increase in the number of multilateral treaties as the modern world demanded that the matters which may be of interest are not limited to two countries. What started as a movement to protect oneself from a common enemy now many issues were brought under the ambit of multilateral treaties. The UN Charter and the League of Nations are some of the major examples of the same. In the trade side WTO is the main body which has many signatory states. There are two important developments that took place in the 1960s which had an impact over the sphere of International Law.13 Firstly, there was a resolution passed by the General Assembly for adoption of the First Global Development Decade, which was a measure to promote social and economic development of the developing countries by multilateral and bilateral efforts. This signifies a change in the approach to International Law where it is apparent that the developing countries have started to have a say in the international discourse which was not a case in traditional approach. Whereas in the League of Nations there were only two sections which dealt with economic or commercial matters but in case of United Nations Charter is full of provisions which have an economic, industrial and commercial nature. In addition to this there was the formation of the Economic and Social Council which signifies a markable shift.
13
T.O. Elias, Contemporary Issues in International Law: A Collection of the Josephine Onoh Memorial Lectures (London: Kluwer Law International, 2002) at page 7.
11
Secondly, it was the creation of the United Nations Committee who was given the responsibility to promote the co-operation among Member states of the United Nations for promoting peace. The result of the second effort was the creation of ‘Declaration on the Principles of International Law Concerning Friendly relations and Cooperation among States in accordance with the Charter’ which was adopted in 1970 by the General Assembly.14
III.
‘Horizontal’ Increase in Subject Matter
As seen in the first part of this paper, the issues which were dealt with in the treaties in the traditional approach to International Law had its emphasis on diplomatic relations and matters which dealt with heads of states etc. there was no mention of the treaties for the welfare of subjects or trade. But it could be seen from the rise of the various multilateral treaties which deal with subjects related to Trade, Commerce, Taxation, Human Rights, Intellectual Property Rights, Labour Rights, Health etc have gained prominence. Most of the bodies which have come into existence under the UN regime are related to the welfare and a small portion is now dedicated towards 15 peace and security. The mandate of such international
organizations is to enhance the quality of living and equality. This is a paradigm shift from the earlier approach which followed a policy of non intervention in the internal affairs of each other.
Each of these treaties which have been signed have their treaty bodies and some of them have fact finding commissions which deal with the issues ranging from their respective fields and submit reports and issue advisories to member states.
IV. 14 15
‘Individuals as subject matters’
Supra note 13, at page 8. Supra note 1, at page 5.
12
Individuals were earlier considered as objects of international law and had no say in the matters of International Law but now in the modern approach towards International Law individuals have been made actors to a certain extent. Like the International Criminal Court has the power to punish people even heads of states and other people who earlier enjoyed ‘diplomatic immunity’ and immunity as they were ‘sovereign’.16 This is evident from the Pinochet trials in which a dictator was given punishment by the ICC. 17
This approach has given certain rights and duties to the
individuals. Like in the European Union, which is another example of International Law arrangement amongst states of Europe, individual can complain against the state. This could not have been thought in the earlier approach and points towards a change. Many treaty bodies also have fact finding bodies which could take evidence from individuals to reach a conclusion and give reports.18
V.
Dispute Resolution Mechanism
The International Court of Justice which is the apex body for providing world with ‘opinio juris’ has been in place and its compliance record has been very good signifying a change from the traditional approach where no such body was present. Now states have an option to resolve their disputes in other ways than War, which was earlier the only option. The questions related to state practice and the complexity of the matters of International importance could be resolved through this dispute resolution body. The advisory opinion of the International Court of Justice has the value of law and it’s a body which sets the tone for formation of international customs through opinio juris. Therefore, in the modern approach to International Law, state practice has less importance than opinio juris.
16
Supra note 2, at page 5. Supra note 13, at page 9. 18 Supra note 8, at page 15. 17
13
The advantages of opinio juris over state practice is that it is fair in its result and is not affected by political affiliations and ideologies which may be a case in state practice as mentioned in first chapter of this paper. The presence of a effective Dispute Resolution mechanism amongst the states also signify a change from the principle of sovereignty which was the hallmark of the traditional approach.19 If a state can accept the decision of a neutral international body then it signifies that there is inclination towards reaching a fair decision rather than harp on sovereignty and policy of no outside intervention.20
Under a multilateral system the dispute resolution mechanism plays a critical role to keep the power centers in check. The reason for that is that for a single country to mount pressure on an International Power becomes a difficult task but if it is routed through the United Nations then the persuasive power becomes way more than an individual effort. Take for example, if Singapore has a grievance against the United States of America, it would be difficult for Singapore in its individual capacity to mount pressure on USA to take action. But, if it approaches the International Court of Justice, then the persuasive power increases manifold. Hence, it can protect states to a limited extent from the hegemony of the superpowers which were in the traditional approach completely out of bounds as there was no dispute resolution mechanism.
VI.
General Principles of Law
There is a consensus amongst states that general principles of law should be codified and made into a set of uniform rules which govern the states. The states have formed various bodies for this purpose in various areas. The International Law Commission’s mandate is to codify the customary law and deal with the problem of the dynamic nature of such laws. New customs are being created 19 20
Supra note 13, at page 766. Supra note 2, at page 6.
14
by the resolutions of the General Assembly (like the Convention on the Law of the Sea) which is a ‘custom’ being formed through consensus amongst the members of the United Nations which is a multilateral body. The International Law Commission draft on which the Vienna Convention on the Law of Treaties of 1969 was based represents a high watermark of the body for the promotion of progressive development and codification of the principles of 21 customary international law. Although the convention is not
exhaustive as a convention which governs all treaties and agreements yet it is quite comprehensive in principle to incorporate principles and rules of treaty law.
21
Supra note 13, at page 766.
15
Conclusion Traditional Approach to International Law was based on the principle of using State Practice over Opinio Juris which has various disadvantages. The state practice results from a number of states following the same practice over a long period of time which crystallizes as law. But in case of rise of new countries it was seen that these practices were not neutral in nature but were marked by different ideologies and were also biased towards the powerful nations. This caused a deviation from state practice by the new countries that emerged in the global arena.
Also earlier it was considered that International Law cannot interfere with the internal working of a country as it would be infringing upon the sovereignty of that state. But due to huge interdependence which the states have over each other in various issues it became extremely difficult to insulate from such matters. The modern approach to International Law sees a marked changed from this approach. Matters such as Human Rights, trade and commerce were brought under the ambit of International Law. The international community changed its stance from protecting sovereignty to working towards common good.
16
The traditional approach the power structure of the world was limited to a few Western nations which governed the international law discourse. But with the rise of multilateral and International bodies such as the UN, the developing nations or the new nations in International Law have been given importance. The dispute resolution mechanisms such as ICJ ensure that Justice to all is given irrespective of status. Therefore, International Law has shifted its focus from state practice to opinio juris.
Bibliography 1. D.W. Greig, International Law, (London: Butterworths, 2007). 2. Wolfgang Friedmann, The Changing Structure of International Law(Bombay: Vakil, Feffers & Simons Pvt. Ltd., 1964) 3. Anthea Elizabeth Roberts, Traditional and Modern Approaches to Customary International Law: A Reconciliation, Vol. No. 95(4), THE AMERICAN JOURNAL OF INTERNATIONAL LAW page 757, (2001). 4. B.S. Chimni, International Law & World Order: A Critique of Contemporary Approach (New Delhi: Sage Publication, 1993) . 5. Malcolm N. Shaw, International Law, 5th Ed. (New Delhi: Cambridge University Press, 2003). 6. Vaughan Lowe, International Law (Oxford: Oxford University Press, 2007).
17
7. T.O. Elias, Contemporary Issues in International Law: A Collection of the Josephine Onoh Memorial Lectures (London: Kluwer Law International, 2002).
18
