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Outlines of International Law -- Asmatullah Kakar (asmat_kakar2002@hotmail.com)
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”.
Outlines of International Law -- Asmatullah Kakar (asmat_kakar2002@hotmail.com)
University Law College, Quetta
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
Outlines of International Law -- Asmatullah Kakar (asmat_kakar2002@hotmail.com)
University Law College, Quetta
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.
Outlines of International Law -- Asmatullah Kakar (asmat_kakar2002@hotmail.com)
University Law College, Quetta
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
Outlines of International Law -- Asmatullah Kakar (asmat_kakar2002@hotmail.com)
University Law College, Quetta
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.
Outlines of International Law -- Asmatullah Kakar (asmat_kakar2002@hotmail.com)
University Law College, Quetta
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
Outlines of International Law -- Asmatullah Kakar (asmat_kakar2002@hotmail.com)
University Law College, Quetta
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.

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Lecture notes on unit 01.docx

  • 1. Outlines of International Law -- Asmatullah Kakar (asmat_kakar2002@hotmail.com) 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”.
  • 2. Outlines of International Law -- Asmatullah Kakar (asmat_kakar2002@hotmail.com) University Law College, Quetta 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
  • 3. Outlines of International Law -- Asmatullah Kakar (asmat_kakar2002@hotmail.com) University Law College, Quetta 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.
  • 4. Outlines of International Law -- Asmatullah Kakar (asmat_kakar2002@hotmail.com) University Law College, Quetta 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. Outlines of International Law -- Asmatullah Kakar (asmat_kakar2002@hotmail.com) University Law College, Quetta 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.
  • 6. Outlines of International Law -- Asmatullah Kakar (asmat_kakar2002@hotmail.com) University Law College, Quetta 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
  • 7. Outlines of International Law -- Asmatullah Kakar (asmat_kakar2002@hotmail.com) University Law College, Quetta 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.