Is International Law Above International Relations? – A Preliminary Commentary

Abstract

For years and centuries, International Law in its premature concepts leading to the contemporary revolution in the 21st century has been centrally concurrent and dependent on the IR theory. As a special ingredient of political and socio-economic impacts are widened from the premature concepts of divine authority to globalization, politics has imparted itself as a special idea, which moves from the supremacy of authority advocated as force majeure to a postulated soft power realm by Wye. Self-determination is the mediating bridge between these two partially and limitedly repulsive ideas, where we must understand that concepts like sic utere tuo alienum non laedas is of imperative consideration as being a part of the IEL, it suggests the basic norm of careful intervention, ascribing limits on state practice and responsibilities, hereby implying about the shape of customary international law ascribable. Thus, the author indicates the required literature of International Law with a required consideration to review an equilibria and finalization between IR and International Law with special references.

Introduction

The basic foundation of International from the Roman Law favor sovereignty more and remain either moot or restrictive over the relevance of self-determination, which is the baseline to understand what is International Law. Even though the introduction of International Law is benefitted by the erga omnes of every nation, relations in the international level ascribe a different setup of how these principles ascribe the general relevance of the sovereigns and their functionary manifestations and establishments. Thus, this introduction shall focus a little on the divine theory of state under the Roman Law, which was advocated at its best by Alberico Gentili.

 Even this is scarcely analyzed by various scholars during their times. Gentili did combine the Roman Law notions of Princeps legibus solutus est and Quod Principi placuit, legis habet vigorem with the recent theories of Jean Bodin, where he stipulates, “Sovereignty is absolute and perpetual power… This sovereignty means that the prince never finds anything above him, neither human being, nor law… This power is absolute and without limitation… That the ‘Prince is not bound by law’ is law, as is also that ‘Law is what pleases the prince’. And this is no barbarian law but The Roman law, the first and foremost among human laws… And so, what is called regal prerogative in England…is absolute power.[1]” This is however just a mere dependency on the divine right of kings naturally as Gentili would align himself behind the King of England.[2]

When we push towards the development of contemporary International Law, we ascribe towards a maturity of limitations and considerable obligations. Such as ascribed by the Permanent Court of International Justice in 1928-

“It is a principle of international law, and even a general conception of law, that any breach of an engagement involves an obligation to make reparation.[3]

Moreover, this is understandable when the concept of statehood is analyzed by Crawford in one of his books, where he ascribes the limiting factors of how statehood is manifested and in what way. He advocates the statutory concerns, but he mystifies the statehood realm in a different way. He states there may come a point where international law may be justified in regarding as done that which ought to have been done, if the reason that it has not been done is the serious default of one party and if the consequence of it not being done is serious prejudice to another. The principle that a State cannot rely on its own wrongful conduct to avoid the consequences of its international obligations is capable of novel applications and circumstances can be imagined where the international community would be entitled to treat a new State as existing on a given territory, notwithstanding the facts.[4] Henceforth, International Law turns out to be not apolitical but advocates equity and viable liability on states.

Even when it comes to International Organizations, their status as an International Legal Personality is actually decisive. The responsibility of an International Legal Personality in contemporary International Law matures and ripens into the language of the International Law Commission in its 2001 Draft Articles on the Responsibility of International Organizations. The draft articles emphasize on the international responsibility by stating the obligations established by “treaty or other instrument governed by international law and possessing its own international legal personality[5]”. Now, in accordance with Articles 26[6], 53[7] and 64[8] of the Vienna Convention on Law of Treaties[9], we can understand how the Nuclear Weapons opinion by the ICJ ascribes about the principle of competences d’attribution attributed to an International Organization as they do not, unlike States, possess a general competence. International organizations are governed by the ‘principle of specialty’, that is to say, they are invested by the States which create them with powers, the limits of which are a function of the common interests whose promotion these States entrust to them.[10]” However, this principle of specialty didn’t work in case of the competence of World Health Organization in Nuclear Weapons in Armed Conflict[11], the competence[12] to address the legality of the use of nuclear weapons[13] was discouraged. The ICJ considered this to be tantamount to disregarding the principle of specialty; for such competence could not be deemed a necessary implication of the Constitution of the Organization in the light of the purposes assigned to it by its member States.[14] Henceforth, political principles entail a generality of how flexible International law can become and how the relations can be severed. Even in the case of Vienna Convention on Diplomatic Relations[15], for recalling that peoples of all nations from ancient times have recognized the status of diplomatic agents[16] and having in mind the purposes and principles of the Charter of the United Nations concerning the sovereign equality of States, the maintenance of international peace and security, and the promotion of friendly relations among nations[17], the idea of responsibility and action ascribes how relations as the phenomena of subjectivity fare formed under the realm of legal objectivity, which we need.

Even Joseph Wye ascribes about the concept of soft power, where he ascribes about thinking “of soft power as an analytic concept to fill a deficiency in the way analysts thought about power. It was eventually used by European leaders to describe some of their power resources, as well as by other governments such as Japan and Australia.[18]”. This is a smart strategy because as China’s hard military and economic power grow, it may frighten its[19] neighbors into balancing coalitions.[20] If it can accompany its rise with an increase in its soft power, China can weaken the incentives for these coalitions. This manifests how International Relations can be utilized into a more cogent perspective. Thus, IR is generally beyond being flexible or capable of being made flexible. However, the principle of the principle of sic utere tuo ut alienum non laedas[21] as an important principle in IEL stands up into a legal principle, which aspires the ILC to treat the atmosphere as a single global unit[22]. This also is related with the liabilities and reparations pertaining to customary international law, which in the end builds up the ‘persistent objection[23]’ and the limiting ‘competences d’attribution[24]’ of states beyond the Vienna Convention on Law of Treaties.

CONCLUSION

Henceforth, power and principle in Politics and Law respectively are diversely different, but they have a conjugal nexus with each other somehow, which in the end gives rise to a more credible concept of law, for the relevance of every nation.

It is the international law, which is a necessitated manifestation of positional relevance and ground, which develops the fate and a better future of international relations.

 

References-

[1] A. Gentili, ‘De potestate regis absoluta disputatio’, in Regales disputationes (London, 1605), pp. 5-11, cited and commented in Panizza, Alberico Gentili, p. 159.

[2] Kingsbury, Benedict; Straumann (2010). The Roman Foundations of the Law of Nations: Alberico Gentitli and the Justice of Empire, p. 303.

[3] (1928) PCIJ Series A, No. 17, 29. Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Second Phase, ICJ Reports, 1950, p. 221, 228; Phosphates in Morocco, Preliminary Objections, (1938) PCIJ, Series A/B, No. 74, 28.

[4] James Crawford, The Creation of States in International Law, 2nd edition, (Clarendon Press, Oxford, 2006), pp. 477-8. Also see Preamble para 5 of the Israel-Palestine Liberation Organization: Interim Agreement on the West Bank & the Gaza Strip, signed 28 September 1995, reprinted in (1997) 36 ILM 551 (‘a transitional period not exceeding five years from the date of signing the Agreement on the Gaza Strip and the Jericho Area on May 4, 1994’).

[5] A/CN.4/L.778, 30 May 2011.

[6]  United Nations, Treaty Series, vol. 1155, p. 339.

The article ascribes on the concept of pacta sunt servanda, where the convention describes the article as-

Every treaty in force is binding upon the parties to it and must be performed by them in good faith.

[7] Ibid, p. 344. The Article states-

A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”

[8] Supra note 7, p. 347. The Article states-

If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.’

[9] Ibid 7, p. 331.

[10] Legality of the Use by a State of Nuclear Weapons in Armed Conflict, ICJ Reports, 1996, p. 66, 78.

[11] Supra note 11.

[12] ICJ Reports, 1993, p. 66, 79.

[13] Ibid.

[14] Supra 13.

[15] United Nations, Treaty Series, vol. 500, p. 95.

[16] Ibid.

[17] Supra 16.

[18] Nye, Joseph S. 2014. The Information Revolution and Soft Power. Current History 113(759): 19-22. Nye further states- “But I was more surprised when Chinese President Hu Jintao told the 17th party Congress of the Chinese Communist Party in 2007 that China needed to increase its soft power.”

[19] Ibid.

[20] Supra note 19. Further, Nye states- “Consequently, the Chinese government has invested billions of dollars in that task, and Chinese journals and papers are filled with hundreds of articles about soft power.”

[21] The term sic utere tuo ut alienum non laedas means that one member-party must use his property so as not to injure the lawful rights of another. The applicability of the maxim extends transboundary harm and damage and the protection of atmosphere.

[22] Please read A/66/10, p. 321.

[23] Please read Anglo-Norwegian Fisheries, ICJ Reports 1951, p. 116, 131. Also: North Sea Continental Shelf, ICJ Reports 1969, p. 3, 26-7, 131 (Judge Ammoun); 235, 238 (Judge Lachs, diss); 247 (Judge as hoc Sørensen, diss);

[24] Supra note 11.

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