International Law – I

Traditional and Modern Approaches to International

Law

ASHISH KUMAR SINGH

IV Yr. B.A. LL.B. (Hons.)

I.D. No. 1556

Introduction

Traditional Approach to International Law was limited to the relationship

amongst states in the light of diplomatic relations. The scope was very limited.

Traditional Approach to International Law is based on the concept of state

practice where the custom plays a very important role and is the governing

factor behind each of actions which the state undertakes. This paper analyzes

various aspects of this traditional approach along with the components of

custom and its advantages and disadvantages. A co-relation between sovereignty

of states and traditional approach can be seen. The second part of the paper

deals with the modern approach to international law which can be said to have

been emerged after the Second World War. This phase saw the inclusive nature

of International Law with the rise in the number of nations which became active

in the International arena as well as subject matter of International Law

increasing from merely diplomatic relations to welfare issues. The modern

approach is marked by the rise of opinio juris over state practice and the

ramifications of the same over the discourse of International Law can be seen in

this paper.

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Research Methodology

AIMS AND OBJECTIVES

The aim of this paper is to analyze the traditional and modern approaches to

International Law. It also looks at the recent changes which International Law

has gone through the changes in its approaches.

SCOPE AND LIMITATIONS

The paper attempts to covers aspects related to traditional approaches to

International Law and looks at various elements of it. It looks at the importance

of custom in International Law. The modern approach and its various

characteristics have also been looked into in the paper. The limitation of this

paper is that it’s limited to a theoretical discussion of these concepts.

RESEARCH QUESTIONS

The paper attempts to answer the following research questions:

1. What is the traditional approach to International Law?

2. Which are the elements of the traditional Approach?

3. What is Modern Approach to International Law?

4. What are the reasons for such a change in the approaches to International

Law?

MODE OF CITATION AND STYLE OF WRITING

This paper uses a uniform mode of citation. It employs descriptive as well as

analytical styles of writing.

SOURCES

The paper uses secondary sources.

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Traditional Approach to International Law

International Law when it arose was limited to the relation of states amongst

each other and the interface of the International Law itself was limited to very

limited fields such as diplomatic and interstate relations. This limited interface

amongst the states can be traced back to the doctrine that each state is a

sovereign in its own capacity. Each of the country has a right to deal with the

internal situations which arise and any outside interference could be seen as

infringement of this sovereignty which the each state enjoyed. So, the states were

willing to interact due to diplomatic reasons and interstate conflicts but the

interaction was vastly limited.1 The rules which governed such an interaction in

the International Law arena were that of state practice. The meaning of state

practice is that each state respected the custom which was being followed for

interact for a long period of time. The rules of diplomatic coexistence had been

consolidated through the practice which the states’ followed. This constituted

bulk of the International Law.

The traditional approach towards International Law laid emphasis on state

sovereignty and related to the nationalist legal philosophy that state has the

complete power to regulate the affairs inside its territory. The first mention of a

dispute resolution mechanism was in the Alabama decision, where certain

British ships were dispatched from the Great Britain during the Civil War even

after opposition from the United States were used by the Confederate. The

United States seek compensation from Great Britain for this loss. Both the parties

subjected themselves to arbitration.2 Hence, the dispute resolution mechanism

amongst the states earlier was subject to the bilateral treaties and it was marked

by any specific bodies for reaching a viable conclusion.

1 D.W. Greig, International Law, (London: Butterworths, 2007) at page 4. 2 Wolfgang Friedmann, The Changing Structure of International Law(Bombay: Vakil, Feffers & Simons Pvt. Ltd., 1964) at page 2.

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Another important interaction which the states had in the traditional approach

was during the period of war. So, international law initially wanted to codify the

law related to laws to fulfill two principles. Firstly, humanization of warfare

amongst the states. Secondly, distinction between just and unjust wars.

Therefore, the Hague Warfare Convention came into being which was a result of

a coming together of states for a common purpose. But, the purpose was hugely

limited. State practice was the governing factor for the interaction amongst the

states. State practice has a descriptive accuracy as it had evolved over a long

period of time. It takes time for a custom to develop hence it has proved itself on

practical basis and states’ compliance with its conduct.3 The reasons why state

practice was relied upon were –

Firstly, continuity with past actions can be achieved if state practice is given

reliance because of the above mentioned reason.

Secondly, reliable prediction of the future action of the states could be told which

makes International Law ‘certain’. But, how far is ‘certainty’ the only test for

compliance is a question which has to be looked into.

The critique of the traditional custom is that there is no process by which custom

is formed which makes the process inherently uncertain. There is no guidance as

to the amount of the time which has to pass for a custom to be formed. There is

no surety as to the frequency and continuity which a practice has to filter

through in order to become a custom which could be applied in International

Law.4 Also, the repeated practice process is too slow and clumsy to meet the

demands of the latest developments which a law might require at a global level.

Besides, these substantive problems there are various procedural inadequacies

which are contained when relied on state practice. These procedural

inadequacies include that these customs are not apolitical, but based on the

3 Anthea Elizabeth Roberts, Traditional and Modern Approaches to Customary International Law: A Reconciliation, Vol. No. 95(4), THE AMERICAN JOURNAL OF INTERNATIONAL LAW page 757, page 760 (2001). 4 Supra note 2, at page 4.

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principle of hegemony. The reason which is cited for this that these customs are

formed by the practice which has been followed by some of the powerful

countries of the world and does not reflect the interests of the whole world.

Taking for example, newly formed countries have no option but to follow the

principles which has been laid by other countries as they are not in the position

to have a separate state practice due to presence of a compelling custom.5 Hence,

the traditional approach which was based on reliance on state practice more

than opinio juris has its inherent problems which have been described in this

chapter.

Another important feature of the traditional approach to International Law was

the presence of less number of treaties and presence of mostly bilateral treaties

the subject matter was also limited. The presence of less numbers of treaties led

to less interaction and understanding amongst the subjects of International Law

i.e. the states. Less interaction led to more conflict situations and less co-

operations on issues of international interest. But, it was soon felt during and

after the First World War, that the need of hour is multilateral treaties to support

the interest and protect the states from aggression. It all began with states

coming together fight a common enemy and the mutual support which was

needed to tackle the problem.6 Also, with the rise in industries and trade

amongst countries it became necessary to interact as the state could no longer

depend itself for the raw material and needed new markets for its finished

products. This could only be achieved through mutual co-operation amongst the

states. This gave a way to the existence of multilateral treaties which is the

hallmark of the modern approach to International Law.

To express the foundations of traditional approach to International Law, it

should be kept in mind that during the initial stages only a few countries in

Europe along with the American nations which were later a part in the 19th

century. The rest of the world had little or no role to play which is reflected in

5 Supra note 2, at page 760. 6 B.S. Chimni, International Law & World Order: A Critique of Contemporary Approach (New Delhi: Sage Publication, 1993) at page 19.

6

the policies and the approaches that was taken in the traditional approach where

more attention was paid on state practice rather than opinio juris.

The small number of European and American nations which has been discussed

above was in a way forming the state practices for all over the world. But the

characteristic of this traditional was that they had no concern for each other’s

internal political or social systems. There was a lot of similarity in the state units

as they were mostly monarchy or a form of monarchial system.7 There was a

minimum concern with the economic and social ideology of the nations which

were participating or states which entered into the field of International

relations.

Another important characteristic of the traditional approach was the importance

being given to states as being the actors of International Law. This approach

gained importance because of the limited interaction amongst the individuals of

the states and also because of state sovereignty states were reluctant to let the

individuals become actors in the international law arena. Hence, only the states

had rights and duties under the International Law regime.

The traditional approach to International Law was based on the theory which

was propounded by Grotius which established the generally accepted rules of

conduct of international diplomacy. The rulers which represented the states had

absolute power due to the absence of a democratic system which was in place.

The international law mainly concerned itself with adjustment of territorial

disputes or related matters, the legal status of high seas, heads of the

governments and their diplomatic representatives. Immunity here means that by

custom a government or its representatives may not be sued in the courts of

another country. 8 The traditional approach also included the recognition of

states and the governments and protection of one sovereign territory of another

along with the regulation of war and neutrality.

7 Supra note 2, at page 4. 8 Malcolm N. Shaw, International Law, 5th Ed. (New Delhi: Cambridge University Press, 2003) at page 5.

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The most important feature of the traditional approach to International Law was

that it did not concern itself with the welfare of people or to the economic

conditions which prevail in nations but mostly dealt with diplomatic issues and

there was no emphasis on the welfare aspect. But another thing that has to be

kept in mind that the states had a custom that they will not destroy their

neighbors through war which was followed. Taking for example Spain, France

and Britain were very powerful nations but did not imply a threat of destruction

of other states9.

9 Supra note 3, at page 761.

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Modern Approach – A result of the rise of

Developing Nations at the Global Arena

As it can be seen from the analysis of the approaches to International Law that in

the traditional approach there were less number of players that were involved in

the making of International Law and hence the arena was limited to that of

diplomacy and inter-state relations. But, after the wave of democracy that has

struck the world a change is seen in the approach as well.10 Earlier during

colonialism, few power centers were present the world was controlled by few

Western Countries and others were insignificant. The demand for raw material

and other commercial interests were met through the exploitation of the

colonies which these powerful nations had. Hence, there was less or no need to

interact amongst each other.11 Also, there was a strong ideological control of

these nations over the customs of International Law. But, after new countries

emerged and colonies were freed, there was a need to interact with them for

meeting demands and supply of the industries. For giving them a voice, United

Nations included many countries which in theory had equal status amongst

states. Hence, arose a new approach to International Law which was more just

and inclusive. It can be seen from the various changes which have been

described in this chapter as to how inclusion of new countries had made quite a

stir in the International Law arena.

I. Widening Base of Countries

It has been seen after the First World War and the later developments that there

has been a greater participation of the states where were previously unknown

the international arena. The primary reason for this is the new wave of

democracy and states gaining independence from colonialism. This led to

creation of more states and hence the need for greater participation. Also, with

the rise in industrialization it was clearly felt that the countries can no longer 10 Supra note 2, at page 4. 11 Vaughan Lowe, International Law (Oxford: Oxford University Press, 2007) at page 5.

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claim to be aloof in the international arena as co operation was necessary for

trade. More than trade the First World War and its aftermath created a

consensus amongst the nations that in order to have peace and stability in the

world and to protect their own sovereignty it was necessary to form alliances

and reach a common consensus.12 With more countries joining it became

increasingly difficult to rely on the earlier principle of state practice. The reason

given for that it was uncertain and took long time to form. Moreover, there was

an argument about the neutral nature of such state practices which were

previously followed by only a small number of powerful countries. Hence, the

reluctance of countries to follow such state practice gave opinio juris more

importance over state practice.

II. Rise in the number of Multilateral Treaties

With the rise in number of countries gaining importance in the international

arena there was a huge increase in the number of multilateral treaties as the

modern world demanded that the matters which may be of interest are not

limited to two countries. What started as a movement to protect oneself from a

common enemy now many issues were brought under the ambit of multilateral

treaties. The UN Charter and the League of Nations are some of the major

examples of the same. In the trade side WTO is the main body which has many

signatory states. There are two important developments that took place in the

1960s which had an impact over the sphere of International Law.13

Firstly, there was a resolution passed by the General Assembly for adoption of

the First Global Development Decade, which was a measure to promote social

and economic development of the developing countries by multilateral and

bilateral efforts. This signifies a change in the approach to International Law

where it is apparent that the developing countries have started to have a say in

the international discourse which was not a case in traditional approach.

Whereas in the League of Nations there were only two sections which dealt with

economic or commercial matters but in case of United Nations Charter is full of

provisions which have an economic, industrial and commercial nature. In

12 Supra note 8, at page 6. 13 T.O. Elias, Contemporary Issues in International Law: A Collection of the Josephine Onoh Memorial Lectures (London: Kluwer Law International, 2002) at page 7.

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addition to this there was the formation of the Economic and Social Council

which signifies a markable shift.

Secondly, it was the creation of the United Nations Committee who was given the

responsibility to promote the co-operation among Member states of the United

Nations for promoting peace. The result of the second effort was the creation of

‘Declaration on the Principles of International Law Concerning Friendly relations

and Co-operation among States in accordance with the Charter’ which was

adopted in 1970 by the General Assembly.14

III. ‘Horizontal’ Increase in Subject Matter

As seen in the first part of this paper, the issues which were dealt with in the

treaties in the traditional approach to International Law had its emphasis on

diplomatic relations and matters which dealt with heads of states etc. there was

no mention of the treaties for the welfare of subjects or trade. But it could be

seen from the rise of the various multilateral treaties which deal with subjects

related to Trade, Commerce, Taxation, Human Rights, Intellectual Property

Rights, Labour Rights, Health etc have gained prominence. Most of the bodies

which have come into existence under the UN regime are related to the welfare

and a small portion is now dedicated towards peace and security.15 The mandate

of such international organizations is to enhance the quality of living and

equality. This is a paradigm shift from the earlier approach which followed a

policy of non intervention in the internal affairs of each other.

Each of these treaties which have been signed have their treaty bodies and some

of them have fact finding commissions which deal with the issues ranging from

their respective fields and submit reports and issue advisories to member states.

IV. ‘Individuals as subject matters’

14 Supra note 13, at page 8. 15 Supra note 1, at page 5.

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Individuals were earlier considered as objects of international law and had no

say in the matters of International Law but now in the modern approach towards

International Law individuals have been made actors to a certain extent. Like the

International Criminal Court has the power to punish people even heads of states

and other people who earlier enjoyed ‘diplomatic immunity’ and immunity as

they were ‘sovereign’.16 This is evident from the Pinochet trials in which a

dictator was given punishment by the ICC. 17This approach has given certain

rights and duties to the individuals. Like in the European Union, which is another

example of International Law arrangement amongst states of Europe, individual

can complain against the state. This could not have been thought in the earlier

approach and points towards a change. Many treaty bodies also have fact finding

bodies which could take evidence from individuals to reach a conclusion and give

reports.18

V. Dispute Resolution Mechanism

The International Court of Justice which is the apex body for providing world

with ‘opinio juris’ has been in place and its compliance record has been very

good signifying a change from the traditional approach where no such body was

present. Now states have an option to resolve their disputes in other ways than

War, which was earlier the only option. The questions related to state practice

and the complexity of the matters of International importance could be resolved

through this dispute resolution body. The advisory opinion of the International

Court of Justice has the value of law and it’s a body which sets the tone for

formation of international customs through opinio juris. Therefore, in the

modern approach to International Law, state practice has less importance than

opinio juris.

The advantages of opinio juris over state practice is that it is fair in its result and

is not affected by political affiliations and ideologies which may be a case in state

practice as mentioned in first chapter of this paper. The presence of a effective

Dispute Resolution mechanism amongst the states also signify a change from the

16 Supra note 2, at page 5. 17 Supra note 13, at page 9. 18 Supra note 8, at page 15.

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principle of sovereignty which was the hallmark of the traditional approach.19 If a

state can accept the decision of a neutral international body then it signifies that

there is inclination towards reaching a fair decision rather than harp on

sovereignty and policy of no outside intervention.20

Under a multilateral system the dispute resolution mechanism plays a critical

role to keep the power centers in check. The reason for that is that for a single

country to mount pressure on an International Power becomes a difficult task

but if it is routed through the United Nations then the persuasive power becomes

way more than an individual effort. Take for example, if Singapore has a

grievance against the United States of America, it would be difficult for Singapore

in its individual capacity to mount pressure on USA to take action. But, if it

approaches the International Court of Justice, then the persuasive power

increases manifold. Hence, it can protect states to a limited extent from the

hegemony of the superpowers which were in the traditional approach

completely out of bounds as there was no dispute resolution mechanism.

VI. General Principles of Law

There is a consensus amongst states that general principles of law should be

codified and made into a set of uniform rules which govern the states. The states

have formed various bodies for this purpose in various areas. The International

Law Commission’s mandate is to codify the customary law and deal with the

problem of the dynamic nature of such laws. New customs are being created by

the resolutions of the General Assembly (like the Convention on the Law of the

Sea) which is a ‘custom’ being formed through consensus amongst the members

of the United Nations which is a multilateral body. The International Law

Commission draft on which the Vienna Convention on the Law of Treaties of

1969 was based represents a high watermark of the body for the promotion of

progressive development and codification of the principles of customary

international law.21 Although the convention is not exhaustive as a convention

19 Supra note 13, at page 766. 20 Supra note 2, at page 6. 21 Supra note 13, at page 766.

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which governs all treaties and agreements yet it is quite comprehensive in

principle to incorporate principles and rules of treaty law.

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Conclusion

Traditional Approach to International Law was based on the principle of using

State Practice over Opinio Juris which has various disadvantages. The state

practice results from a number of states following the same practice over a long

period of time which crystallizes as law. But in case of rise of new countries it

was seen that these practices were not neutral in nature but were marked by

different ideologies and were also biased towards the powerful nations. This

caused a deviation from state practice by the new countries that emerged in the

global arena.

Also earlier it was considered that International Law cannot interfere with the

internal working of a country as it would be infringing upon the sovereignty of

that state. But due to huge interdependence which the states have over each

other in various issues it became extremely difficult to insulate from such

matters. The modern approach to International Law sees a marked changed from

this approach. Matters such as Human Rights, trade and commerce were brought

under the ambit of International Law. The international community changed its

stance from protecting sovereignty to working towards common good.

The traditional approach the power structure of the world was limited to a few

Western nations which governed the international law discourse. But with the

rise of multilateral and International bodies such as the UN, the developing

nations or the new nations in International Law have been given importance.

The dispute resolution mechanisms such as ICJ ensure that Justice to all is given

irrespective of status. Therefore, International Law has shifted its focus from

state practice to opinio juris.

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Bibliography

1. D.W. Greig, International Law, (London: Butterworths, 2007).

2. Wolfgang Friedmann, The Changing Structure of International Law(Bombay:

Vakil, Feffers & Simons Pvt. Ltd., 1964)

3. Anthea Elizabeth Roberts, Traditional and Modern Approaches to Customary

International Law: A Reconciliation, Vol. No. 95(4), THE AMERICAN JOURNAL OF

INTERNATIONAL LAW page 757, (2001).

4. B.S. Chimni, International Law & World Order: A Critique of Contemporary

Approach (New Delhi: Sage Publication, 1993) .

5. Malcolm N. Shaw, International Law, 5th Ed. (New Delhi: Cambridge University

Press, 2003).

6. Vaughan Lowe, International Law (Oxford: Oxford University Press, 2007).

7. T.O. Elias, Contemporary Issues in International Law: A Collection of the

Josephine Onoh Memorial Lectures (London: Kluwer Law International, 2002).

16