Justice and Legitimacy – Foundations of International Law
December 18, 2020
International Law is as complex as it is simple. From a common man’s perspective, it is one such law that most ignore or are oblivious to it in their lifetime. We don’t consider it important enough. The truth is, it is what has helped in maintain good relations with our neighbouring states and with other nations. International law as developed by Hugo Grotius was a theory. Many have in the past necessitated the importance of having a supreme law that governs each state. It has its own derivatives and its own jurisprudence of justice and legitimacy which we shall see.
Concept of International Law
International Law can be considered as very sophisticated machinery that has been well oiled since the turn of 20th century. International Law in general is utilised for governing the relations between international states. These relations are governed through well construed agreements which can be bilateral or multi-lateral. This means that a nation can enter into agreement with a single nation as part of bilateral agreement, or multiple states as part of multilateral agreements.
When Jeremy Bentham a renowned jurist and philosopher coined the term, he imagined it as a law that would entail a body of law which shall govern international states/nations and other international Actors. Its development is a significant event that shows how far the world has come from the state of two world wars in the 1900’s.
Scope of International Law
From being a principled law that was supposed to maintain peace between nations, International law has evolved to encompass various facets of Trade, Economics and welfare activities. International law while initially being a cog in a machinery of chaos has developed itself as a well-oiled machinery strong enough to enforce peace. This machinery is now a complex structure which governs relations between international actors such as NGO’s, organisations and even International states. It has spread itself to the extent where Human rights are now recognised throughout the world, and we have international Law to thank for it!
Justice and Legitimacy
These two words are interchangeable. Where one means delivering what is right and justified, the other defines the degree of fairness. A state utilises these fundamental terms to justify their decisions. In political sense, these terms might mean different than in a more legal sense. When taking into consideration that International Law as a field of law is relatively young, it has faced considerable challenges since its conception. One such challenge was people doubting its legitimacy. Can International Law deliver Justice? Can International Law as law legitimise itself as a strong legal regime that states, and other actors depend on?
These concerns were answered by formation of agencies such as Human Rights Commission, United Nations Security Council, World Bank and others. These agencies are international in their scope and provide a platform for various international states to go about maintaining peace and other relations with each other.
When we talk of Justice, we think of our legal systems that enact their role as custodian of people. We think of innocent lives being delivered a righteous justice by courts of law. But in case of international law, who would’ve enforced it? The concern of enforcement of law was a major concern. Unlike domestic or municipal law where a domestic court has jurisdiction, domestic courts are not equipped with the authority to deal with matters of such high degree.
This problem or question is answered through a well establish International Court of Justice. Established in 1920 as Permanent Court of International Justice, which after the second world war was renamed as the International Court of Justice or ICJ. ICJ is one of the primary sources of International Law and provides the legitimacy that is required from such a vast field of law.
Where does a piece of International Law seeks its validation from? We know one of the primary sources for it is the International Court of Justice. ICJ has its pronouncements given, serve as precedents for various courts across various levels. Other than this,
International Conventions Most of us are familiar with Paris climate change agreements, Hague Convention, Geneva Convention. These conventions as they appear either for a very specific matter under discourse or they exhibit a more general approach towards a subject. These conventions are entered into by multiple state and actors as maybe required by it. These conventions function essentially as a written law or rule book for states that become signatory to it.
Treaties These are not really different than conventions, but for the simplicity of understanding the concept, treaties we see are generally in the form of bilateral or multilateral agreements and can even be a form of peacekeeping agreements between two states exhibiting hostilities towards each other. The nature of these agreements corresponds to contracts, a very formal contract formed between two parties at an international level. A good example for this is the Nuclear Non-proliferation Treaty which prohibits signatory states from developing and researching in fields of nuclear weaponry and aims at reducing the already existing nuclear warheads. These kinds of agreements are mostly voluntary and thus cannot be forced upon a state. India is not a member to Non-proliferation Treaty and thus cannot be forced to be in such an agreement. But once a state enters into such an agreement they are bound by the terms and conditions stipulated in the treaty.
Customs Customary International Law is basically a, uncodified version of law on an international law. This includes practices by individual states and long standing traditions. It is however more difficult to interpret and ascertain. Due to its volatile and versatile nature, many nations can freely violate these laws and get away with it since not many know the extent of customs! One such instance is the killing of civilians by another state even during unrest or war in other state.
General Principles of Law These are different from customary principles in that these are not derived from people or societies but primarily out of courts of various civilised states. This means the recognition given by domestic courts to such text or instances is deemed to be international law, which is presumed by the courts.
Judicial Decisions and Jurists We know the ICJ has a role to play. Jurists too have played an important role in ascertaining as to what International Law really is and what it should be. In absence of a codified law, custom or general principle, it very common for courts to refer to jurists to gain a better understanding of the issues involved.
These are some of the sources of International Law which provide it with legitimacy and its ability to deliver justice. Not only through these sources, but the extent and powers of the United Nations and its affiliations, each of which have their own set of rules and governing principle provide a more detailed and positive outlook on what International Law should be.
Since the Middle ages, Jurists and scholars have tried to devise a way to give a shape and a proper body to a set of rules that can become a supreme rule over everyone and everything. This is what International Law was conceived to be. Each and every nation being governed by the same law. This would’ve definitely helped solve most of our cross-border problems. But as good as it sounds, it is even more difficult to implement. While we listed out the main problem of delivering justice and legitimacy of International Law, we need to understand that these problems were encountered by most jurists and in order to develop an underlying principle that would make the well-oiled machinery work, there was a need to differentiate it from our domestic and municipal laws.
International Law, through its policies and rules, has helped nations and millions of people. While as envisaged, it is not a supreme law, it is not even mandatory in nature as far as its applicability goes. Most of international law is contracts between two International states. In such a scenario it is commendable the kind of effort a lot of nations have taken to develop it. International Law has found its footing now in political diplomacy between foreign states while also in foreign trade practices. International law has also delivered justice whenever it was required to do so. ICJ’s role in international diplomacy has not gone unnoticed and its active status in the international community helps state get assurance out of treaties and conventions.
Even with all its doubts, International Law is truly one of the most legitimate pieces of law to have ever being recognised, the scope of growth and concerns expressed by it are second to none.
Editor’s Note International law has been defined as the body of rules and principles of action which are binding upon civilized states in their relations with one another. This article includes a general overview and analysis of the core general rules and principles of international law, and explores these rules and principles in both their historical and modern contexts.
It also seeks to examine broader themes in the historical development of international law, its objects, scope, sources, where it derives its legitimacy from, and various other similar aspects.