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International Law

Law:
Law is an English word it is derived from German word “Lag” which means Constant
Unmovable, Static and Plane.

Definitions of Law:
There are various definitions of law some of them are the following.

Aristotle: “Whatever the ruling party enacts is called law”

John Austin: “Law is the command of sovereignty”

Woodrow Wilson: “Law is that portion of establishing thought which has distinct & in the
shape of uniforms backed by the authority & power of state”

Holland: “Law is general rule of external action enforced by sovereign political authority”

J.C. Carter: “Law always has been still is and will forever continue to be custom”

Sir Henry Maine: “Law is accepting norms of society and state has to implement those
laws”

Salmond: “The body of principles recognized & applied by the state in the application of
justice”

So,
1. Law should be uniform.
2. It should be universal.
3. Its jurisdiction should be compulsory.
4. There should be system of course.

Divisions of Law:
1- Municipal Law (with in the country)
2- International Law (out of the country)
Introduction to International Law

Introduction:

"International law is the body of legal rules, norms, and standards that apply between
sovereign states and other entities that are legally recognized as international actors."

International law is also called Public International Law and Law of Nations.
The term was coined by the English philosopher Jeremy Bentham (1748–1832).

Definitions of International Law:

There is still no consensus among academics and other interested parties as to what
international law is. There are some who argue that there is no such thing as international
law as it is not imposed by a sovereign authority. However, it is not a very strong argument
because all laws are not necessarily imposed by sovereign authorities. A very good example
is the customs, which are practices of people. Furthermore, all relevant sectors in the
international community act as if international law exists.

1. Classical Definitions:
Some classical definitions by prominent scholars are given below that don't meet with
modern trends of international law
• Bentham: International law is a collection of rules governing relations between states.
• Oppenheim: Law of nations or international law is the name for the body of customary
and conventional rules which are considered legally binding by the civilized states in their
intercourse with each other.

2. Modern Definitions:
The earlier definition was that international law is a system of law that regulates the activity
of states. However, this is not a modern definition because international law does not
confine itself to States. Therefore, modern definitions for international law have been
introduced. For example,
• Prof. J. G. Starke has stated that: “International law consists of a system of laws, the
majority of which applies to states but also regulates activities of individuals and
international organizations when it becomes the concern for the international community.”
• Schwarzen Berger: International law is body of legal rules which apply between
sovereign states and such entities which have been granted international legal personality.
Disciplines of International Law:

The term "international law" can refer to three distinct legal disciplines:

• Public International Law, which governs the relationship between provinces and
international entities. It includes these legal fields: treaty law, law of sea, international
criminal law, the laws of war or international humanitarian law and international human
rights law.
• Private International Law, or conflict of laws, which addresses the questions of (1)
which jurisdiction may hear a case, and (2) the law concerning which jurisdiction applies to
the issues in the case.
• Supranational Law or the law of supranational organizations, which concerns regional
agreements where the laws of nation states may be held inapplicable when conflicting with
a supranational legal system when that nation has a treaty obligation to a supranational
collective.
The two traditional branches of the field are:
1. Jus Gentium — law of nations
2. Jus Inter Gentes — agreements between nations

Significance of International Law:

International law is the vital mechanism without which an interdependent world cannot
function properly and within the bounds of law. It does not only control the states by
overseeing their conduct in relation with other states, like the law prohibiting the use of
armed force to settle dispute, but also maintains laws regarding individuals (e.g. human
rights).

Furthermore, international law is intrinsically bound up with diplomacy, politics and conduct
of foreign affairs; it is not, at all, based on an adversarial system of law, meaning thereby
that many of the rules have been evolved from the practice of the states and do not bind
the states in any course, which tends to make international law more flexible. Also,
international law leaves a state with so many options rather than with merely one course of
action, which serves as an advantage for a system so bound up with politics and diplomacy.

Global Scope of International Law:

According to Bentham's classic definition, international law is a collection of rules governing


relations between states. It is a mark of how far international law has evolved that this
original definition omits individuals and international organizations—two of the most
dynamic and vital elements of modern international law. Furthermore, it is no longer
accurate to view international law as simply a collection of rules; rather, it is a rapidly
developing complex of rules and influential—though not directly binding—principles,
practices, and assertions coupled with increasingly sophisticated structures and processes.
In its broadest sense, international law provides normative guidelines as well as methods,
mechanisms, and a common conceptual language to international actors—i.e., primarily
sovereign states but also increasingly international organizations and some individuals. The
range of subjects and actors directly concerned with international law has widened
considerably, moving beyond the classical questions of war, peace, and diplomacy to include
human rights, economic and trade issues, space law, and international organizations.
Although international law is a legal order and not an ethical one, it has been influenced
significantly by ethical principles and concerns, particularly in the sphere of human rights.

Above all, international law covers a wide range of laws which include the following:
• Refugee laws
• Narcotics/Drugs treaties
• Human trafficking
• Obscene publication
• World health treaties
• International trade development
• Agreement relating to independent guarantee and letter of credit.
• Protocol on road signs and signals 1947
• Contract of carriage of goods by roads.

Scope of International Law in Pakistan:

As far as the scope of international law in Pakistan is concerned, it is expanding with the
passage of time. Pakistan is under an obligation to follow its international commitments
arising out of any treaty, convention or international agreement, ratified by it. Further, after
having ratified a treaty, it is mandatory for Pakistan to incorporate it into domestic laws by
enacting implementing legislations. For instance, Dangerous Cargos Act and Maritime Zones
Act, 1996 of Pakistan aim at translating its international obligations into the domestic laws.
Similarly, United Nations Convention on Law of the Sea has been ratified by Pakistan and to
ensure its enforcement, corresponding domestic legislation is required.

Conclusion:

Keeping in view the need of a stable and orderly international society, the relevance and
pertinence of international law is all the more emphasized. In this age of globalization and
an increased degree of interdependence between different countries of the world,
international law can provide a viable regime to regulate intra state relations and activities.
However, it is to be noted that international law has its limitations owing to concepts like
state sovereignty - a sacred norm of international law. But recent developments in the
arena of international law have proved that it can play a vital role in regulating international
affairs through various treaties and conventions, which upon ratification, bind the state
parties to observe the same. Although, as has been said earlier, there does not exist an
effective tool/forum to implement these international treaties (like the corrective measures
that can be resorted to by a state against its citizens in an event of non-compliance to the
laws of the land), nevertheless, compliance can be ensured by means of sanctions (such as
trade embargos or diplomatic cut off etc) which are of great relevance for life in the comity
of nations, already becoming a global village. For example, UNSC issued 1373/01 resolution
which prevents and suppress the financing of terrorist acts and 1566/04 further makes it
mandatory for worldwide implementation. The importance associated to these sanctions can
be traced to factors such as increased economic (trade) activity at a global level, free flow
of information, formation of regional/global blocks pursuing a specific ideology/orientation,
an ever increasing rate of immigration, natural as well as human resource sharing etc. All
these factors have contributed to the growth of international law and at the same time
highlighted the need of it. It may finally be said that starting from the limited interstate
interaction between the Greek city states, international law and its need have become more
relevant in the modern state system. It can help bridge the gaps of dissenting ideologies
and divergent policies of sovereign states by bringing them together on a commonly agreed
upon law (treaty/agreement/convention), so as to bind them into compliance and reduce
friction to ensure a more orderly and peaceful world.

Public International Law and


Private International law

Definition of Public International Law:

Oppenheim: "Public international is body of customary and conventional rules, which are
considered binding on civilized states in there relation with each other."
Schwarnzen Berger: "International law is body of legal rules which apply between
sovereign states and such entities which have been granted international legal personality.

Definition of Private International Law:

M. P Tandon: "Private international law is a body of principles determining questions as to


jurisdictions and questions as to selection of appropriate law, in civil cases which present
themselves for decision before a court of one state or country, but which involves a foreign
element i. e. which effect foreign persons or foreign or transactions that have been entered
in a foreign country or with respect of foreign system of law"
Pitt Cobbet: "Private international law is the body of rules for determining questions as to
selection of appropriate law, in civil cases which present themselves for decision before the
courts of one state or country, but which involve a foreign element i. e, which effect foreign
persons or foreign things or transactions that had been entered into wholly or partly in a
foreign country or with reference to some foreign system of law."

Distinction between Public International Law and Private


International Law:

1. As to Consent:
• Public international law based on the consent of the state.
• Private international law is not based on the consent of the states.
2. As to Object:
o Public international law regulates relationship of states inter se and determines rights and
duties of the subject states at international sphere.
o Private international law determines as to which law will apply of two conflicting in a
particular case having foreign element.
3. As to Conflict of Laws:
o Public international law does not involve in conflicts of laws.
o Private international law involves in the conflicts of laws.
4. As to Nature:
• Public international is same for all the states.
• Private international may be different in various states.
5. As to Sources:
o Public international law has its sources in treaties, custom etc. etc.
o Private international law has its sources in the legislation of the individual state to which
the litigant belongs.
6. As to Application:
o Public international law applicable to criminal as well as civil cases.
o Private international law is applicable to civil cases only, which present themselves for
accession of courts of the state.
7. As to Subject:
• Public international law deals with the states.
• Private international law deals with the individuals.
8. As to Municipal Law:
Public international law is not part of municipal law.
9. As to Jurisdiction:
• Public international law does not involves determination on the question of determination.
• Private international law determines court which will have jurisdiction to decided issue in
question.
10. As to Scope:
o Public international law has wider scope. it is of universe character.
o Private international law has lessor scope.
Conclusion:
To conclude it can be said that, public international law and private international law are
branches of international law. Public international law is known as conflict of laws. these are
different from each another but in some exceptional cases rules of private international law
may become rules of public international law.

Objects and Purposes of


International Law

Objects of International Law:

An object of Public International Law is merely indirectly vested with rights and obligations
in the international sphere, e.g. a Filipino private citizen is generally regarded not as a
subject but an object of Public International Law because, while he is entitled to certain
rights which other states ought to respect, he usually has no recourse except to course his
grievances through the Republic of the Philippines and its diplomatic officers.

Following are some of the important objects of international law:


1. Utility general, in so far as it consists in doing no injury to the other nations respectively,
having the regard which is proper to its own well-being.
2. Utility general, in so far as it consists in doing the greatest good possible to other
nations, saving the regard which is proper to its own well-being.
3. Utility general, in as far as it consists in the given nation not receiving any injury from
other nations respectively, saving the regard due to the well-being of these same nations.
4. Utility general, in so far as it consists in such state receiving the greatest possible benefit
from all other nations, saving the regard due to the well-being of these nations.

It is to the two former objects that the duties which the given nation ought to recognize
may be referred. It is to the two latter that the rights which it ought to claim may be
referred. But if these same rights shall in its opinion be violated, in what manner, by what
means shall it apply, or seek for satisfaction? There is no other mode but that of war. But
war is an evil---it is even the complication of all other evils.

5. In case of war, states shall settle their international disputes by peaceful means in such a
manner that international peace and security and justice are not endangered; also states
make such arrangements, that the least possible evil may be prod.
6. States shall refrain in their international relations from the threat or use of force against
the territorial integrity or political independence of any state, or in any other manner
inconsistent with the purposes of the United Nations.
7. The duty not to intervene in matters within the domestic jurisdiction of any state.
8. The duty of states to cooperate with one another.
9. The principle of equal rights and self-determination of peoples. All States enjoy sovereign
equality. They have equal rights and duties and are equal members of the international
community, notwithstanding differences of an economic, social, political or other nature.
10. The principle of sovereign equality of states.

In particular, sovereign equality includes the following elements:


(a) States are juridically equal;
(b) Each state enjoys the rights inherent in full sovereignty;
(c) Each state has the duty to respect the personality of other states;
(d) The territorial integrity and political independence of the state are inviolable;
(e) Each state has the right freely to choose and develop its political, social, economic and
cultural systems;
(f) Each state has the duty to comply fully and in good faith with its international obligations
and to live in peace with other states." (cf. Principle No. 6 of the main body of the
"Declaration" in Magallona, 104).

Cultural Objects:

During the twentieth century the belief that the protection of cultural property is causes for
international concern and requires international cooperation has met with increasing
acceptance. At the end of World War II, there was little international law relating specifically
to cultural heritage. The Hague Convention for the Protection of Cultural Property in the
Event of Armed Conflict (1954), the first significant step taken to remedy this situation,
remains to this day one of the most important pieces of international legislation for the
protection of cultural objects. The preamble to the Convention asserts that "damage to
cultural property belonging to any people whatsoever means damage to the cultural
heritage of all mankind, since each people makes its contribution to the culture of the
world,"27 that "the preservation of the cultural heritage is of great importance for all
peoples of the world and that it is important that this heritage should receive international
protection."28 Article 4(3) of the Convention requires those countries bound by it to
"undertake to prohibit, prevent and, if necessary, put a stop to any form of theft, pillage or
misappropriation of, and any acts of vandalism against, cultural property."29

Purposes of International Law:

International law is primarily a system regulating the rights and duties of states inter se. so
much is hinted at in the very title ‘International law’, or in another title frequently given to
the subject –‘the law of nations’, although strictly speaking the word ‘nation’ is only a crude
way a synonym for the word ‘state’. Indeed, it is very good practical working rule to regard
international law as mainly composed of principles whereby certain rights belong to, or
certain duties are imposed upon states.

Nevertheless, although the principal component of the system is represented by binding


rules, imposing duties and conferring rights upon states, international lawyers have now
increasingly to concern themselves with desiderata. Guidelines, and recommended
standards expressed in a non-binding form (e.g., as in the declaration adopted by the
united nations general assembly, the recommendations of the international labor
conference, and the recommendation of the periodical consultative meetings held under the
Antarctic treaty of 1959), but which many states concerned feel constrained to observe.
Further relatively recent examples are those of the guidelines contained in the code of
practice on safety and health in the construction of fixed offshore drilling installations in the
petroleum industry adopted by the international labor organization (ILO) in 1981, and the
international code on the marketing of breast milk substitutes approved by the world health
organization (WHO) in the same year. These may indeed eventually evolve into binding
legal rules, e.g., by general acceptance or approval (cf art IX, Para 4 of the treaty on
Antarctica of 1959, under which recommended measures may become ‘effective’ upon
approval by the parties concerned)

There are, apart from these, the co-called ‘gentlemen’s agreements’, i.e., accepted
undertakings governing, e.g., the equitable allocation to different regions of the world of the
number of judges of the international court of justice that may be elected from the countries
of each particular region, or the pattern of the number of members for each region to be
elected to the united nations international law commission.

The main object of the international law has been to produce an ordered rather than a just
system of international relations, yet in later developments (for example, in the rules as to
state responsibility concerning denial of justice, and in the rules and practice as to
international arbitration) there has been evidence of some striving to ensure that,
objectively, justice be done between states. Moreover, apart from seeing that states receive
just treatment, the modern law of nations aims at securing justice for human beings. It is
significant further that the word ‘justice’ appears in the titles respectively of the permanent
court of international justice and its successor the international court of justice, both being
judicial tribunals set up to decide disputes between states and to give advisory opinions
according to the international law. That justice is a primary purpose of the law of nations
emphasizes its kinship to state law.