2
Research Methodology
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?
3
SOURCES
The paper uses secondary sources.
1
D.W. Greig, International Law, (London: Butterworths, 2007) at page 4.
4
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.
2
Wolfgang Friedmann, The Changing Structure of International Law(Bombay: Vakil, Feffers &
Simons Pvt. Ltd., 1964) at page 2.
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).
5
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.
6
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.
6
B.S. Chimni, International Law & World Order: A Critique of Contemporary Approach (New Delhi:
Sage Publication, 1993) at page 19.
7
Supra note 2, at page 4.
7
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.
8
Malcolm N. Shaw, International Law, 5th Ed. (New Delhi: Cambridge University Press, 2003) at page
5.
9
Supra note 3, at page 761.
8
Modern Approach – A result of the rise of
Developing Nations at the Global Arena
9
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.
10
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.
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.
11
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
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.
12
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.
17
This 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
16
Supra note 2, at page 5.
17
Supra note 13, at page 9.
18
Supra note 8, at page 15.
13
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
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
14
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 which governs all treaties and
agreements yet it is quite comprehensive in principle to incorporate
principles and rules of treaty law.
21
Supra note 13, at page 766.
15
Conclusion
16
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.
Bibliography
Press, 2007).
17
7. T.O. Elias, Contemporary Issues in International Law: A Collection
International, 2002).
18