DR.
RAM MANOHAR LOHIA NATIONAL LAW
UNIVERSITY
2017-18
PROJECT ON
PUBLIC INTERNATIONAL LAW
Submitted to: Submitted by:
Mr. Manvendra kumar tiwari
Utkarsh Khandelwal
Asst. Proff. 4th Sem.
RMLNLU Sec:B Roll no. 162
GROUNDWORK FOR INTERNATIONAL LAW: A CRITICAL ANALYSIS
International law is the set of rules generally regarded and accepted as binding in relations
between states and between nations. It serves as a framework for the practice of stable and
organized international relations. International law differs from state-based legal systems in
that it is primarily applicable to countries rather than to private citizens. The key to the search
lies within the unique attributes of the international system in the sense of the network of
relationships existing primarily, if not exclusively, between states recognising certain
common principles.
The author considers international law to be a system; as under the “general systems theory”.
This system further as he explains is part of an autopioytic system which essentially means
that the system is a living organism that struggles to survive for as long as possible in the
environment of the living organisms and adversities continuously threatening and questioning
its existence which can also be related to the Darwin’s theory propounding the survival of the
fittest and for that purpose it is based on certain basic rules which the author calls axioms, the
system strictly follows four basic axioms in order to ensure its longest survival.
1. The primary purpose of the international legal system is not to regulate
international relations but to preserve itself:
Discussing the main agenda behind the working of or changes thereof in the
international laws as explained by the author tilts more towards preserving itself
and surviving in the previously mentioned autopiotic system than determining the
dynamics of relations among countries. In order to achieve such stability, it
changes itself into laws that are most conflict resolving and peace- creating. This
provides stability to the system in the longer run as the justice provided using
these rules are not just abstract, but it is generally accepted apparent justice.
2. The international legal system, as it strives to persist through time, tends to evolve
norms that reduce friction and controversies among states and to foster systemic
equilibrium by prescribing how controversies may be avoided. mitigated or
resolved:
Furthering the assumption of the axiom 1, the international legal system aims at
surviving through time and the barriers to its survival; conflicts and wars being the
major deterrent to it, hence to avoid conflicts and wars becomes the major
building block in the development of the laws and rules in the legal system
governing the acts of different countries. The number of laws involved in the
system also plays an important role in the conflict resolving or peace making
process, as explained by the analogy of the “hills and valleys”, the author
elucidates that the more the more the number of laws involved the more
exhaustively and peacefully a conflict can be resolved.
3. The general-systems viewpoint has practical payoffs:
As dextrously expounded by the author that the aim of the international laws is not
just to end the war, that could also be done by just not addressing the war and
letting the stronger side end the war through obviously violent means, but that in
turn leaves a possibility of retaliation and this is where the primary objective
behind framing and accepting the international laws come in wherein they aim at
keeping at bay all the possibilities of a follow up war and hence aiming long
lasting peace.
4. The actual practice of states constitutes, for the most part, practice that the
system normatizes:
The ultimate aim of any system that aims to gover majority behaviour is that it is
followed by those people. It cannot risk its non-compliance and hence such non-
compliance has to be chastised and determining such punishments also must be
thought through in an exhaustive manner, if the punishment and gains of the non
compliance of the laws are same it gives no leverage to the laws over the
individuals or states itself and hence people will simply continue to disobey them
and hence putting in danger the survival of the system itself, hence such
punishments have to be more severe that the gains following the non compliance.
The final aim is to normalise the behaviour using such laws and punishments
following the non compliance thereof.
Strictly adhering to these axioms and making them bedrock of all the propositions,
thesis and anti-thesis by anyone analysing the international legal system.
In the present essay, the author introduces 11 propositions that are followed by 14
corollaries, both of which shall be addressed together and in an explanatory
fashion.
Following are the propositions and corollaries expounded by the author:
1. The author proposes that the international legal system recognizes its own
membership, it is the system itself that recognises a state and hence confers
upon it all the entitlements that it provides to all the other states, these
entitlements come along with a certain numbers of duties to be followed, this
package of entitlements and duties are to be agreed to and complied with in
totality, no state can pick and choose among them. It is also proposed that the
state and system came into being together, rather because of the dynamics of
relation between two states, assuming the first two civilised states interacted
with each other in order for their ambassadors to have a safe passage in the
foreign country, this gives rise to a rudimentary legal system and hence with
the recognition of state the system also comes into being.
2. The laws of the international legal system are propounded by the system itself
and not the states; the system keeping all the axioms in consideration makes,
alters or scraps the international laws, for its own survival. These laws are then
either accepted or rejected as a whole by the states. No state has the power to
change such laws or introduce new ones. New laws emerge out of the
principles that resolve conflict between two or more countries and these
principles generally apply to all other countries for disputes on similar lines.
Corollary:
It is virtually impossible to predict which rules of the system will emerge even
if all states’ interests and goals were known, the system cannot rfely upon the
interests of the states since many a times they states find their interests quite
erratic and hence making laws on such rapidly changing interests would make
a system that is weak and hence would not be analogous to the principles of
the autopiotic system.
3. The international legal system contains three kinds of rules: primary rules,
sanction rules, and metarule, primary rules are the basic rules or laws that
governs the acts of the states and are to be complied with, but these rules alone
cannot assure long term survival of the legal system and hence the non
compliance of these primary rules must be penalised by certain sanction rules
which provide for necessary sanctions that are proportionate to the effect of
the non-compliance. Further, in order to make changes in the primary rules,
there are certain rules that are to be kept in mind that ensure the compliance of
such changes with the axioms of the international legal systems, these rules
are called metarules.
4. A fundamental metarule is that primary rules must generally be perceived as
conflict resolving rather than conflict provoking, this proposition can be
construed as metarules aiming to resolve the conflict and ensure peace for a
long time.
Corollary:
a. Although long term peace is a factor that causes changes in the primary
rules but in the modern era, technology also plays a major role in such
mutations, for eg- with the inventions and development of space laws, new
laws emerge and changes also happen accordingly.
b. New actions that are generally perceived as clearly fostering the stability
of the international legal system will, overtime, override and change prior
rules, this is basic exposition of the axioms but the author further explains
that such rules that involve less or no sanction of violence in certain cases
in order to prevent a bigger and more destructive violent activity may also
be accepted in the international legal system as it in turn gives way to
stability of the system.
5. The system recognizes and adopts rules that result from the successful
settlement of interstate controversies, a major part of the rules of the
international legal system are determined by the treaties signed by the different
state parties. A treaty is the most peaceful way to change or modify
international law without the need for military force. If an international
controversy is settled by the participants, the principle that encapsulates the
reasons for the settlement is also adopted by the system for general use. This
latter process could be called learning by trial and error. More formally, it may
be called customary international law.
Corollary:
a. The first of two ways in which a customary rule is formed is by an act (or
abstention), an articulation that the act is legitimate or right, coupled with the
non obstruction of the act by affected states, in the usual of of introduction of
new laws as introduced out of a conflict between two parties, it is the opinion
of the other states that matters to accept such new change more than the
opinion of the parties in conflict.
b. The rules that help in resolutions of a dispute are one major factor in law
making, the ratio that is the rules themselves that are relied upon in dispute
resolution can be said to be the new rules and not the obiter dicta, the general
observations of a judge in the dispute. Obiter does not have a `precedential
value.
c. There can be no “persistent objector” exception to customary-law formation,
any state persistently rejecting a norm or a law of international legal system
does not have much ramifications over the general applicability of the
customary rule, since the rules of customary nature are not a well defined set
of rules and each rule has certain effect upon the other rules and the act of
other countries, one country objecting to a certain norm does not damage the
validity of that act.
d. A condition subsequent, even though it involves no action, may retroactively
determine the legality of an act, in some cases states have to intervene in the
domestic acts of a certain stte in order to prevent gross violation of some
international rules (for instance, human rights). This intervention although is
in violation of certain provisions but can be justified in lieu of the violations of
human rights being done. In most of the cases there are subsequent additional
provisions/ caveats to the provisions of the international law that determine the
validity of the act of the foreign state so intervening and if those acts are found
to be violative of the international laws, they can be treated as violation and
sanctions can be made, all these being done retroactively does not make any
difference.
6. The author further proposes that sanctions made against the violations of the
international laws would have to exceed significantly the gains that followed
the violations of such international laws, these sanctions although still
proportionate and necessary, if equal to such gains would only encourage the
states to violate the laws and endanger the existence of these laws, hence the
sanctions will have to do more damage to the state at fault.
Corollaries:
a. Sanctions may be unilateral or multilateral, No rule of customary
international law has evolved (nor is it easy to see how one could evolve)
that would render a sanction impermissible if imposed by one state but
permissible if imposed by many states. The individual state is in a sense
acting as proxy for the other states, if not a leader. Lawful sanctions are
privileged actions under international law and therefore may be executed
by any nation or group of nations. Multilateral sanctions are, of course,
preferable when they are available: “there’s safety in numbers.”
7. Metarules are invariably homeostatic, If a metarule were not homeostatic ,It
would be capable at any time of generating a runaway series of dysfunctional
primary rules that could lead to a collapse of the system. Such metarules
would not have survived. Thus, the two most important metarules of
international law— namely, the rule of custom and the enforceability of
treaties—are axiomatic.
Corollary:
a. A rule that has its origin in the domestic law of many states—even if the
same rule is found in the domestic law of every state in the world—cannot
automatically be lifted upto the plane of international law without risking
the possibility of systemic dysfunction. Procedural and jurisdictional rules,
if confined to international courts, do not constitute a danger to the
equilibrium of the international system.
8. .All rules apply to all states equally, The principle of the legal equality of
states is consistent with, but does not necessarily follow from, the three
axioms. Yet, examples from practice indicate a strong gravitational pull
toward equality. States are uncomfortable with chauvinistic, one-sided rules,
even when the states are favored by those rules.
Corollary:
a. Since all the states have to follow the same rules and no discrimination
between the rules and duties to obey is made between these date, the
entitlements or the rig hts conferred to the states are also the same and
apply generally. This also forms as an incentive for the states to follow
their duties.
9. With the principle of reciprocity built in to the creation of rules of
international law, the rules are more apt to survive in the evolutionary process
than rules that are lacking in reciprocity. .If state M were to take excessive
advantage over state N today, next year state N and its allies might retaliate in
kind. In short, the state that you cheat will not go away; it is part of the
enforcement mechanism against you (which is not true of domestic market
transactions).The expectation of reciprocity acts as a brake upon greed.
Equality of states and reciprocity have never been more acutely felt in
international transactions than in recent decades.
10. Interdependence seeking rules have an evolutionary advantage, .The vast
majority of the rules of international law have historically moved in the
direction of the interdependence of states, thus evidencing the proposition that
interdependence-producing rules have an evolutionary advantage.
Conclusion:
The international legal system strives for lasting as long as possible and for
that it follows certain basic principles, the present essay rightly proposes some
further propositions and corollaries, which apparently ensure the longest
survival if accepted. The forthcoming transformative revolution in human
rights norms can only be hazily sketched at the present time. The present
essay’s thesis predicts hat the international legal system will rise to the
occasion and absorb many human rights norms—norms that will then actually
become enforceable through the sanctions-metarule procedure. If all this takes
place as predicted, it will be irreversible and thus stand as the most important
turning point in the history of law on earth.