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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.

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SOURCES
The paper uses secondary sources.

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

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.

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.

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).

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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 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
4
Supra note 2, at page 4.
5
Supra note 2, at page 760.

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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 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

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.

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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.

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.

8
Malcolm N. Shaw, International Law, 5th Ed. (New Delhi: Cambridge University Press, 2003) at page
5.
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
10
Supra note 2, at page 4.

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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 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
11
Vaughan Lowe, International Law (Oxford: Oxford University Press, 2007) at page 5.
12
Supra note 8, at page 6.

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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 addition to this there
was the formation of the Economic and Social Council which
signifies a markable shift.

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

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.
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

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.

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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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

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

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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.

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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.

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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

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).

17
7. T.O. Elias, Contemporary Issues in International Law: A Collection

of the Josephine Onoh Memorial Lectures (London: Kluwer Law

International, 2002).

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