CSS International Law Solved Past Paper 2016

Define International Law. Discuss its nature and scope. To what extent it is relevant and effective in modern times? (20)


Public international law covers relations between states in all their myriad forms, from war to satellites, and regulates the operations of the many international institutions. It may be universal or general, in which case the stipulated rules bind all the states (or practically all depending upon the nature of the rule), or regional, whereby a group of states linked geographically or ideologically may recognize special rules applying only to them, for example, the practice of diplomatic asylum.

The mistake of confusing international law with international morality must be avoided. While they may meet at certain points, the former discipline is a legal one both as regards its content and its form, while the concept of International morality is a branch of ethics. This does not mean, however, that international law can be divorced from its values.

Historical Development

The foundations of international law (or the law of nations) as it is understood today lie firmly in the development of Western culture and political organization. The growth of European notions of sovereignty and the independent nation-state required an acceptable method whereby inter-state relations could be conducted in accordance with commonly accepted standards of behavior.

Hugo Grotius, a Dutch scholar, has been celebrated as the father of international law. His primary work was the De Jure Belli ac Pacis, written during 1623 and 1624. The law of nature now reverted to being founded exclusively on reason. He retained the theological distinction between a just and unjust war, a notion that was soon to disappear from treatises on international law, but which in some way underpins modern approaches to aggression, self-defense and liberation.

Basis of International Law

Naturalists vs. Positivists

On the one hand there was the 'naturalist' school, exemplified by Samuel Pufendorf (1632-94), who attempted to identify international law completely with the law of nature, and on the other hand, there were the exponents of 'positivism', who distinguished between international law and Natural law and emphasised practical problems and current state practices.

Pufendorf regarded Natural Law as a moralistic system, and misunderstood the direction of modern international law by denying the validity of the rules about custom. He also refused to acknowledge treaties as in any way relevant to a discussion of the basis of international law.

The positivist approach, like much of modern thought, was derived from the empirical method adopted by the Renaissance. It was concerned not with an edifice of theory structured upon deductions from absolute principles, but rather with viewing events as they occurred and discussing actual problems that had arisen.

What states actually do was the key, not what states ought to do given basic rules of the law of nature. Agreements and customs recognized by the states were the essence of the law of nations.

Positivism developed as the modern nation-state system emerged, after the Peace of Westphalia in 1648, from the religious wars. It coincided, too, with theories of sovereignty such as those propounded by Bodin and Hobbes, which underlined the supreme power of the sovereign and led to notions the sovereignty of states. ICJ also adopted a positives-attitude in the Asylum case.