“International Law is followed more in the breach than in the observance;” even though this is a famous line, I do not agree with it. I am certain that over the years International Law, instead of being a kind of ‘myth making’ without any particular and effective jurisdiction, has evolved into a particular fascinating branch of law, the highest of them all, which might either break or make the world.
It is still true that the International Law does not possess the legal systems for the timely development of substantive rules and this inadequacy allows the gaps to show. Instead of depending on high-sounding, unimpeachable law making, it depends on negotiation, good offices, discussions, mediations, conciliation, and arbitration, and as a last resort on the judicial settlement. These tools might be considered as traditional mechanisms; but this opinion does not mean that they are entirely ineffective in the modern world. International treaties and agreements that are used to solve many a claims between States, have become an integral part of International Law. There is no denial that continuous relevance of the effectiveness of negotiations and diplomacy is enormously applicable even today.
“Of particular importance is the need for some sort of an institutional consultative framework in areas of recurrent problems or situations when frequent problems are likely to arise,” Fombad (2003, ed. O’Connell, page 53).
In modern day world, diplomacy has taken the centre stage as a part and alternative for International Law and diplomacy is not connected with cunningness any more. Talleyrand was supposed to have rubbished the claim that diplomacy was an art of duplicity and lying. In addition to this, there are more than 40 international courts and tribunals all trying hard to implement international law and solving various conflicts all working keeping the sovereignty of states in mind.
“Sovereign equality of states is a cardinal principle of international law. It is on the basis of this principle that states demand the same respect as is given to other states, their equal companions in the community of nations, that they claim equality of treatment, or the other way round, that they resist undue discrimination” (Ustor, E, in Gyorgy Haraszti, 1981, p. 217).
“Occasionally people or states will break people or states will break laws despite the presence of enforcement machinery, but that does not mean that there were no laws to begin with,” (Simpson, 2001, p.158).
“Instead of resolving disputes through institutionalized bargaining, states choose to delegate the task to third-party tribunals charged with applying general legal principles,” (O’Connel, 2003, p.469).
There is no doubt that observance of International Law poses some fascinating and sometimes, daunting jurisprudential questions. There are difference of opinions about its legitimacy, efficacy and compliance. Ensuring them has proved hard over decades. Combined with International Relations, International Law had remained an erratic and unpredictable issue.
“The argument that a sovereign cannot be bound in the same way as a subject does not hit the point, for everybody agree that international law is not a law above, but only between the states” (Simpson, G. 2001, pp. 112 – 113).
After the fall of League of Nations, The United Nations Organisation had been the most widely accepted body of International Law execution. The organisation has rendered yeomen service in solving worldwide conflicts and had steadily been doing appreciative work. Charter of United Nations has bound its member states through its various organs that work towards the single goal of establishing International Law, The General Assembly, The Security Council, and other bodies undertake pacific settlement of disputes, and bring action against breaches of peace and acts of aggression. States make their own regional arrangements under the framework of International law and today, no State would like to be referred to as ‘enemy state’. A lot depends on reputation of the countries like international economic and social co-operation, Trade and global economy. The Economic and Social Council, The International Court of Justice, The Secretariat of UNO had been practising most of the rules related to International Law under the UN Charter. To highly disturbed areas, transitional security arrangements are made, through peace keeping forces and this had been an effective arrangement to stop unwanted wars. UN observers get posted to most of the disturbed areas with gratifying results.
The Law of the Sea is established through right of innocent passage, rules applicable to merchant ships, rules applicable to Government ships other than warships, and rules applicable to warships, International Law applies to the High Seas, along with measures for fishing and conservation of the living resources of the High Seas. These laws cover the continental shelf, principles covering the seabed, ocean floor, and subsoil even beyond the limit of connected country’s jurisdiction. These rules establish the Laws of Sea, territorial sea and contiguous zone. They have established rules on matters of international navigation, archipelagic states, exclusive economic zone, regimes of islands and even the enclosed and semi-enclosed seas. There are laws regarding the rights of access of land-locked countries, their route to the Sea and commercial arrangements while despatching or receiving goods, legal status, their immunities and privileges and rights, ecological and environmental protection, development of marine research, protection of migratory species and most of all, on settlement of henceforth ensuing disputes. Legality of exclusive economic zone is respected.
Treaties and covenants are established for the outer space, covering the activities of all countries in exploring, using the outer space and celestial bodies. Diplomatic relations are guided by 1961 Vienna Convention and the Diplomatic intercourses and immunities are regularised with issues like permanent sovereignty over natural resources. Universal declaration of Human Rights and self-determination, subsequent international covenants, General Assembly Resolutions, independence declarations to colonised countries, international convention to eliminate all kinds of racial, political, religious discriminations had been the recent developments in International Law. International Court of Justice had been working as the ultimate lawgiver and the defying countries could come under a lot of international pressure, economic sanctions and even negative public opinion.
Crimes committed against Geneva conventions, torture and killing of prisoners of war, genocide, crimes against the entire humanity like murder, deportation, genocide, rape, enslavement, torture or any other inhuman act is effectively tackled by the connected bodies. Territorial conflicts are given the utmost importance although this has been a difficult matter to mete out justice.
But this does not mean that sincere efforts have not been made in this regard.
“The development of international rule structures (like rights), for example, can offer transnational actors, and a state’s own subjects, new possibilities for pursuing their political interests. Much of the action in modern international law concerns how international norms are noticed, absorbed, and used politically within the legal frameworks of states” (Sandholtz and Sweet, in Reus-Smit ed 2004, pp. 270-271).
Thus, International Law had been steadily gaining grounds over decades and has established itself in the most positive way possible. Even unwilling Countries are forced to adhere to the International Law, as world public opinion could not be ignored any more.
“While the rules of international humanitarian law are frequently violated, international law is not entirely without means of compelling states to observe them. One such method is the reprisal, although it is at best a crude and arbitrary form of redress. Another sanction of the laws of war is the punishment both during and after hostilities of war criminals, following upon a proper trial” (Starke, 1989, p. 555).
Development of global economy has made the world to shrink further. Environmental issues are threatening the entire universe and today, World is aware that despotic rules, hunger, ignorance, poverty and natural catastrophes have to be tackled by united world. Countries cannot survive on their own without honouring International Law and hence, observance of its rules and regulations has become imperative. International Law could neither be ignored, nor could be observed in the old apologetic way any more and States are forced to honour the rules to avoid bitter consequences.
- Brownlie, Ian, (2002), Basic Documents in International Law, 5th Edn., Oxford University Press.
- Haraszti, G., (1981), ed., Questions of International Law, Akademiai Kiado, Budapest.
- O’Connell, Mary Ellen, (2003), International Dispute Settlement, Dartmouth Publishing Company, Aldershot.
- Reus-Smit, C. (2004), Ed., The Politics of International Law, Cambridge University Press.
- Ross, Alf, (1947), A Textbook of International Law, Longmans, Green and Co., London.
- Starke. J.C. (1989), Introduction to International Law, 10th Edn. Butterworths, London.
- Simpson, Gerry, (2001), The Nature of International Law, Dartmouth Publishing Company, Aldershot.