12

INTERNATIONAL LAW
International law as a controlling mechanism of interna
tional politics is relatively more general, continuous and a
commonly accepted concept than other
Iike the balance of power and collective controllingIt mechanisms
security. is based on
centuries long legal experiences during which it acquired a
Aistinct identity as well as a thematic unity. As a
normative ideas and empirical legal propositions, system of
lawcontinues to envisage international
jects toward it.
international order and direct
It is in this sense that it is
its sub
therefore, no designing international' and,
of any future international order can be
completed without suitably according international lawa place
in it.
The nature and scope of
bute differing international law, however, contri
terms of the
perspectives of enquiry chiefly manifesting in
Western, the Marxist and the Third World
perspec
tives. Their simultaneous existence and, at times, contrary
interpretations of a legal dispute do
and uncertainty to international law.impart elements of confusion
ability of international The s0-called non-enforce
upression as if internationaladjudication
law is moresupposedly gives an
an
Teality. The basic reason, however, for this illusion th¡n a
the essential foundations is that
uncertainty
provide only a partial account of the
international legal syystem and its codification.
law has to International
pattern of transcend the original and hitherto dominating
and neutrality).existenceI his(1.e.is projecting itself as laws of war, peace
i1945nvolved in these laws necessary because the ethno-centricity"
prevents their wider acceptance in post-
world.
Perspectives haveAlternatgrown
ively, in
the Marxist and the third world
accordance with their respective
 230

perceptions of intern ational 1aw and the International Politics

al forces, that dominate the course ofinterplay of
today. These differing perspectives needinternational
reconsideration so that a 'perspective of
to be interelrnaattiioonsn-
given a careful
develop and which, in turn, may
surer contemporaniety.
perspectives'
may
provide international lawa
It is with this purpose
first with the three that we intend acquainting ourselves
perspectives of
then endeavour to appraise the
jawand its role in
international law and
evolving nature of international
is that international politics. Our operational yalue
international law is fundamentally
national ('municipal') law and, therefore, diferent from the
this context is an unwarranted drawing parallels in
over. international law "conceptual stretching. More
essentially
processes of international politics as draws sustenance from the
matter of voluntary choice than anyadherence to it is more a
law itself. If 'cooperative coercive dictates of the
enterprises'
politics then international law shall tend dominate international
to be more efiective
and on-going and vice versa.
The Western Perspective
International law according to the
name for the body of custo mary andwestern perspective is "the
are considered legally binding by civiliconventional
zed
rules which
course with each other." As such, it is a law states in their inter
for the intercourse
of states with one another, not a law for
law, again, it is a law between and not above,individuals. *As a
the single states.
Along with Oppenheim whose definitional premise we just
referred to, Charles Fenwick too regards
the body of rules accepted by the general 'international law as
as defining their rights and the means of community of nations
procedure by whicn
those rights may be protected or violations of them redressed.
Phillip G. Jessup, however, began a trend for
nature of international law, He pointed out that expanding
the traditiona
characterizations of international law as "law applicabie
relations between states'" are increasingly getting opposition on
the grounds that a "modern law of nations'" essentially arranges
individual involvement with 1law along with the state-involve-
ment. The two together tend to impart international law a
individuals
comprehensive character within which it applies to
 InternationalLay
231
their relations with states and even to certain
in
ships of
individuals. *3 The expanding inter-relation-
perspectives of interna-
tionallaw were elaborately
more
out that the new brought out by W. Friedmann
when he pointed
national law extends over many preoccupation of inter-
communications, Jabour, atomic fields-education,
energy, etc." In this
health,
he also explainedthe fact that the differences Context
in cultural back
ground are contributing to the processes of
law
differences in style and method but hardly any basic essential
divergen-
cies of principle. The conditions of peaceful coexistence
between states in our modern world, the
ments of survival, security and welfare, theminimum require-
blend between
.he reguirements of 1nternati0nal order and the pursuit oe
national interest, all contribute to the
assimilation of the
conditions of national coexistence which form the
of internationaI law."4 substance
Despite the wide-ranging perceptions of international law.
the basic subject-matter of international law, according to the
western perspective is laws of war and laws of peace. Hugo
Grotius., "the father of international law," first divided the
subject-matter in this way which is reflected by the very nomen
clature of his treatise, On the Law of War and Peace. The trend
was further consolidated by L. Oppenheim who wrote the two
volumes of his pioneering work, International Lav in the same
fashion. All the new developments in law-making, while enrich
ing international law both quantitatively and qualitatively, do
1ot yet seem to get a new categorization in the Western frame
work.

law Ihe western views generally tend to interpret international

in the light of its resemblance to the municipal (national)
law. Accordingly, the absence of the 'municipal' traits in inter-
national law tend to become its inadequacies in their assess-
ment.5
There are broadly speaking three major philosophical
schools of thought concerning the sources of international law
the naturalist, the posit ivist and the eclectic (or Grotian). The
:
ofnaturalist school arises out of the medieval period (1632-1694),
and consists
such legal philosophers as Samuel Pufendorf
Emerich de Vattel (1714-1767) and James Lorimer
(1818-1890).
232

These philosophers, in varying proportions, put

view that international obligations International Politics
law and that the ultimate are
explanation derived from a
and forwardhigherthe
law rests on the principles of natural
provided a normative basis to law. law. Thus, the
ofvalidity human
The positivists, on the other hand,
abstract notions of the were skeptical
naturalists
tended that what nations aboutconthe
naturalists and they, alternatively,
with more relevant actually did was
norms for their conduct to provide them
relations. The positivists, therefore, of
positive human action as the opted
among others Alberico Gentili source of law. They
for
concrete international
and
included
(1590-1660), Cornelius Van (1552-1608), Richard Zouche
Johann Jakob Moser Bynkershoek
(1701-1785).
separated law from theology (or These
(1674-1743) and
people collectively
naturalists) and made
of law. John
normative overtones of the
treaties and customs as
Austin positive sources
contending that law (1790-1859)
went
could be
to the extreme extent of
authority, thereby implying that derived only from a sovereign
be a real law since there was nointernational law could not
international
from
determinate
others. relations who could command habitualSuperior" in
The two obedience
were divergent trends of naturalism and
naturalcombined
by Hugo positivism
and positive Grotius who
laws were sources of argued that both
presented eclectic view of law.
an law. By doing sO, e
The Marxist Perspective
The Marxist
from that of the perspective of
in so farinternational law is different
western it
international law, in each phase of emphasises the fact t
of the basic human and social evolution,
is identified in
terms
Thus, the basic principles of principles that it represe
which do not coincide with international
the
law form a catego
this law. In fact, these origin and developmen
appear
development of this law. It is in only at a certain
stage in the
development facilitates adistinct this
formsense
of thethatbasiceachprinciples
international law which qualitatively differ from every other
of
stage ol

earlier stage of development and the corresponding form of the

then existing basic
principles.? The present basic principlesof
 Lay 233
Internalional
international law namely the prohibition of aggression and
equality are, therefore, different from the
for sovereign
respect
basic principles of say feudalist, capitalist or imperialist
earlierof
stages growth.
Marxists believe that the principles of international law
The andmaintain that the removal of legal
essentially normative
bounds of normativeness would, in effect,
principles from the
are
amount to
depriving them of their 'intrinsic' quality.5 The
normative base does
not, however, obscure their specific role in
international law.
of
the systembasic prrinciples of international law, according to
The
are related to the morc detailed rules of this law in the
Deblin, are to the rules of ordi.
came way as constitutiOnal principles
nary laws,
9 The basic principles are best 'illustrated by the
Iof the UN charter (purposes and principles'") while
Art. enshrined in the laws governing
details of the ordinary laws are
the sea and
outer-space, transnational trade and invest
arbitral tribunals, science.
ments. international communications, a wide
education, besides
technology and creative research and
international organizations, the
range of laws governing various principles
UN and others. The underlying spirit of these basic peaceful
according to the Marxist perspective is the reality of in
coexistence which enables different social systems to coexist
essentially one world.
An excellent Marxist interpretation of the sources of inter
national law comnes fromn I. I. Lukashuk.lo He is of the opinion
at Western
the state) authors, while making the will-factor (the will
of the the basis of international agreements, do not
answer the basic questions as to whose
will the agreements
reflect and what its Sources are. He alternatively contends
that the will of a state is essentially the will of its ruling class
and is determined by society's standard of living, in which the
lmiceadinbasis
g roleof issoociety
played11 byG.I.
the Tunkin
relations of production, the econo-
supplements this by point-
Ing out that though the economic component is significant it is
not the only determining factor of the state's will and the
agrhteerement s embodying it.
national law
through this will,
He specifies thatsuch suprastructural
phenomena is also influenced by
The Marxistas philosophy, primacynational
imparts ethics,
perspective politics,
law, etc.2
to international
 234
International Politics
treaty as a source of international law. These
enacted by the sovereign states on the basis of treaties are
sovereign equity to conform to the basic principles international
of
tional law. Then come customs. In addition these areinterna-
to
sources of international law such as national other
of law; decisions
international courts; decisions of national courts; doctrine
of international law; general
and diplomatic acts.13
principles of international latw
The Marxist perspective is not ignorant of the role of inter.
national law in more recent aspects of
science and technology, space laws, the law-making such as
in international law and new disarmament problem
to the growth of economic designings contributing
international
been adequately covered in a
law. Most of these aspects have
comprehensive volume on Con
temporary International Law edited by G.I. Tunkin.
The Third World
The third Perspective
world is more a state of mind than a
political entity in international politics. As such, like concrete
its perceptions of international law do elsewhere,
tive in the strict sense of the not constitute a perspec
term. These perceptions, how
ever, do provide meaningful foreign-policy
orientations to the
Third- World' countries in their international
both the super powers as well as among dealings with
ingly, their perception of international lawthemselves. Accord
also has a mobiliz
ing effect which manifests in behaviour, 4
The Third World, as a whole, istheir
not international
prepared to legitimize the
existing Western-dominated interpretation of peace, order and
law. In its opinion, these rest on
The colonial/imperial regimes ofunjust foundations of the past.
the West drained thell
sOUrces over to the Western dominant powers and
made i The
selves economically powerful and politically dominant.
post-1945 national sovereign assertions of the third wo
challenges the ethical, legal, and more recently even the
political validity of the Western powers pre-eminence in inter-
pational politics. In the same vein it also questions the
propriety of those laws (including international law) whichtend
to perpetuate their hegemony. The Third world essentially
equality
combinesthe liberty aspects of the West, with the theseit
spects of the Marxist perspective and on the basis of
 InternationalLaw 235

vOurs to
provide international law the essential non-
western
endea orientations.

third
world desires that international law should take
The
of their emergence.
It is only through this that it
cognizance international law. They want international
really be an
will ensurefor them a fair deal' from the developed countries
Jawto accommodating their basic economic needs.
terms of
in impartial foreign aid to them, and recognizing their
impartingequalityin international politics. They further expect
sOvereign law to institutionalize the democratizing processes
international
international politics and, thus, help them in establishing a
of international relations. In their
participatory frameworkpatronized
of
this framework, by international law, would
opinion
alone enablethe world to give a greater meaning to interna-
It
tional interdependence. is in this setting that the world would
offectively combat the global challenges of our times such as
nopulation explosion, poverty, illiteracy, environment pollution
and unrestricted arms-race.

The Evolving Nature of International Law

The following rather sketchy account of the four perspec
tives enables us to be acquainted with the evolving nature of
international law:
1. The Western notions of international law no longer
characterize the total reality of it. The development of the
Marxist perspective has qualitatively infiuenced the course of
e contemporary international law. The emerging trend toward
greater democratization of international processes has further
Contributed to the erosion of the west-dominated view of inter
national law. Accordingly, there does not exist any one
dominant world-view but at least three distinct world-views
which need a synthesis on the basis of which common percep-
lions of the
tion of world challenges would commonly facilitate adop-
in uni versally institutionalized
acceptable normative order
in2.ternatTheional and its adjudicating structures:
law
in the
UN basic principles of international law are enshrined
and
that charter,
Purposes of
exp. Art. I which elaborates the principles
these basicsthehaveUN. Itconsiderably
voluntary choice
is an undisputed fact of our times
legitimized due to the
of sovereign states. To that extent,
 236

international law is also

states, while committing acquiting greater Iacceptability
nternational Politics
also simultaneously themselves to the UN and as these
which the world body commit themselves for the
its
ideals,
principles as well. Allexists,
other
hence their
detailed adherence purpose
to the for
festing in the legal designs for legal basic
communications, transnationalarrangementsjustice,
international ordering quests for mani-
tion and research, social
Space laws, etc. science and technology, laws
of essentially conform
activities,the
of educa-
international law. The to the
basic sea,
contemporary international expanding
providing a relational law can bestperspective
be
priofnciplthees
practicable pattern of
pattern to
these appreciated by
these
ing as developments in terms of ordinary
phenomena.
relationship in this respect is to view
A
law as 'instruments
provided the UNfurthering the international
for lawS act
3 In the
in
light of thecharter;
constitutional fabric of
evolving first two
to assumenature of
that international law, it isexplanations about the
sued by the international
law perhaps not difficult
above them. Innotion that it is acannot purposefully
law among be pur
fact this nations and not
national law nor for differentiation is
neither
to suggest that
while
international law. It is
national law is over the rather simplistic
valid for
becauseinternational law among the national
both the levels of is law community
aspects Within it and it is nation-states.
essentiaily This 1s SO
the law
acquires its only when this combine is these two
accomplished
among
it and the community operational
law over them members acquires dynamics. Nationally,
that
law
Two are imparts the social legitimacy 101
intrinsically
the laW exists
among related to governing
of that community.
each other. Internationally,
toward
The
the end of its nation-states but this is just the beginning
a lawlegitimized form ofacquiring
a
over the law, in a legitimate basis oftends authority.
tary national sovereigns different setting, to be
fromsovereign choice, want because
this to be they, by their volun-
di
and from
eign
fferentiation to
aggregation,
individual identity to a
so. They want to move
from conflict to cOoperation
nation-state can pursue
international law. Accordingly,these collective identity. No sover-
the ajd of
the goals without
nation-states, by and large,
Internatiomal
Law 237
the higher normative ideals enshrined interna-
in
subscribeto the
laW,
more particularly, basic principles residing the
in
charter. The basic
tional principles tend to be the higher ideals
UN govern international relations
and sovereign equality
which instrument' for furthering individual national
to be an
tends this direction. It cannot be an impediment to it or
pursuitsin more the international
in
end itself. The interdependence
an
characterizes
international relations, the greater shall be the
2WarenesS
that sovereignty, at best, only provides equality to
performers in the international setting. It cannot,
to grow
facilitate participatory mechanisms
national and
facto, International law, then,
processes.
characterize international
ipso

an entity onthe basis of an explicitly manifested inter-

becomes all sovereignty considerations,
nationalwill, which transcends
viewthe world as one and the only one in
attempts to
and mankind. in allits diversities, resides and, yet, commonly
which
situations of sself-progress, a process which brings
seeks the the other similar ones
and which, in turn,
to
themnearer (mankind):
destiny to it
impart common of
law is only one of the many sources
4 The municipal the basis
tendency of appraising it on
international law. The
therefore, unsound. It is, for instance,
is,
of municipal criteria international law along the
national
inappropriate to view execution and adjudication.
The
legislation,
processes of law international law essentially
there but
parallels are apparently to assume a distinct form and sub
transcends them in order pointed out.
earlier
International law, as we have pursuits
stance for it. certain national sovereign
to which is more moral
Sems as a response authority
acquires an coercive. Nevertheless,
ad, inthe process, persuasive than
than legal and more one in so far it provides
effective
the authority tends to be an differences and an aspira-
conflicts and
asolution to the existing interdependence and good
of as the
tion to make the world a niche is not sO manifest
will. It is true that the authority either, but the alternative
enforceable qualitative
national one and not so again rooted in a more cateringtothe
to the imperfection is rather than
will
of the international
desiPaysical
gningforce a basis of order.
238

The Role of International Law Today

International Politics
Our understanding of international law enables us to
envisage for it a useful role in mediating the conflict
and regulating the various processes that
national law with a view to characterize
catering to the basic
situatinter-
ions
principles
international order. That alone would give relevance to of
it as
this is the domain around which international forces
and interact with each other. crystallize
International law can purposefully contribute in the follow.
ing major areas of international activities :
1. International law, on the basis of a world wide
tive. can impart rules of the political game to the perspec
international
community while highlighting the fact that political and power
games are essentially "instrumental"" and these, therefore. are
relevant only till they conform to the basic principles of inter
national existence;
2. It can contribute to the
institutionalization of such inter.
national institutions as UNCTAD for regulating and possibly
altering interregional imbalances in development, thus, enabling
the quest for greater social justice;
3. It can also contribute toward integration of
knowledge
by providing integrating perspectives to the theoretical and
applied aspects of knowledge on the one hand and integration
of sister-disciplines into an inter-disciplinary perspective on
the other. This unified system of knowledge and accompany
ing instrumentalities of it can alone provide alternative strategies
of growth, development and reconciliation of diverse life-styles
in the world;
4. The functioning of the multinational corporations (the
MNCs) is an indomitable factor of international relations.
International law can also attempt at regulating their activities
through some definitive legal enactments;
5. International law can also facilitate the build-up of an
international communications pattern by evolving regulatory
mechanisms for various modes of international communl
tions-satellite communications, telephone and postal-servico
radio communications and television:
6. International lawandcanprocurement,
resource-conservation also facilitatebesides
the sophistication
processes o
 InternationalLaw
239
s9d institutionalizing the laws of seas and
space laws;
and7. Environmental protection is another area where inter-

national law
can be useful. In this context the
'spirit of Stockholm'
shall be fully in orderremembrance
as it was
there
of that
the a global concern for environmental pollution emerged
follow-up inthe form of UNEP was devised. The spirit
andafurther facilitate efforts at counter-balancing the trend
can legal ways and means; and
through
8. International law still relevant for devising ways and
8. disarmament and arms control.
means of
of
someof the
the critical sectors
in which international
These are
Durposefully contribute. What is fundamentalv
law can fact that the international will
context is the fact
significantin this
legal ordering exercises failing which law shall
must precede
farther. Atime has come to realize that the world is
not go anyvery simultaneously posing severe
changing very rapidly and it is the
mankind. International law must cope up withlaw
challenges to development. To quote Milan Bulajic,
and social relations.
pace of change the development of
has so far
lagged behind international law to wait for the
for to become duly
Once it was possible
relations, for them to mature,
international
advent of new making themn the subject of
stabilized before would amount to imper
proceedings possible
regulation. Today such the face of peril. It is no longer
missible inactivity
in
legally elaborated, formulated,
principle to be published etc."5
towait for a ratified,
internationaltreaties, enough to transcend
incorporated in become dynamic
processes of
International law must with the real
and come to grips the
application of
niceties contribute to notions of
the legal It must accepted
human endeavour. commonly with the
the basis of involvement
those processes on only by this become eftective
It is can
justice and propriety. internationallaw
processes at work that
and legitimate. REFERENCES 2.
1905, 1,
Longman,
2 vols.Century,1924, p.34.
International Law, Law, Macmillan 1943,
1. L Oppenheim. International Nations,
of