1. Professor Martii Koskenniemi in his Article titled ‘What is International Law For?

’ analyses
the objectives of international law (IL). He belongs to the critical legal school of IL and has
questioned its assumptions like the paradox of objectives, supremacy of states as
international actors and debate between instrumentalism and formalism.

IL governs the relationship between states and aims to maintain peace, security and justice
as provided in UN Charter. He has argued that there is a paradox of these objectives as they
have different meanings for different people and exist at a high level of abstraction. For
example, Art.2(4) and 2(7) of UN Charter provide for non-use of force and non-intervention,
however, use of force by powerful nations has been done on the ground of humanitarian
intervention. Thus, highlighting the dichotomy of these objectives.

In another example, he focuses on conflicting objectives of different states. Some countries

have made reservations to the Convention on the suppression of Genocide 1948. PCJ while
providing an advisory opinion on the validity of these reservations held that “reservations
are valid if they do not go against the object and spirit of Convention”. Professor
Koskenniemi raises a questions here that the Convention is not a living being so its spirit can
only be determined by the people/countries constituting the Convention. He takes forward
the argument of realists that countries can have conflicting objectives and IL does not
provide final answers to the objectives of a Convention. IL grapples with problems of lack of
uniformity, consistency and objectivity and can only provide a temporary accommodation.
However, despite the clash of objectives, IL has maintained a culture of civility and
convergence of interests due to the interdependence between states.

IL is the political preference of international actors. Conventionally, IL is the law of nations

wherein only states were considered as international actors because of their sovereign
feature recognised by the Treaty of Westphalia 1648. However, now the role of individual or
non-state actors like transnational corporations and NGOs has increased. Globalisation has
also undermined the sovereignty of states and their role in IL. Despite the increasing role of
non-state actors, states continue to be central and individual can raise issues in the
international paradigm only through the medium of states. Professor Koskenniemi has
questioned this aspect of international law which is dominated by states. Further, he has
pointed out that the notion of sovereignty is distorted as developed nations are given
priority over developing ones. For example, the issue of terrorism got international focus
 after the 2001 attack on USA but the issues of hunger and poverty faced by developing
nations are not provided sufficient attention.

He has also discussed the divide between formalism and instrumentalism. Formalists are
conservative who go by the letter of law and are criticised for being technical and rigid.
While instrumentalists are pragmatic who focus on objectives of law and are criticised for
being on a slippery slope of objectives which has no stoppage. Professor Koskenniemi is
saying that though there is a constant clash between these two, the world is governed by
their combinations which is the task of IL practitioners. IL practitioners have to weigh the
considerations of both formalists and instrumentalists to ensure fairness of outcomes.

Unlike idealists, he has considered IL in a situation of conflict which should operate as a

relatively formal technique along with the instrument to advance the claims of people. He
clarifies that the objective of IL is IL itself whereby he is giving weightage to formalistic
school as it is only through the formal letter of law that states come together and discuss
issues. Further, IL exists as a promise of justice and should have an aspirational face which
advances the course of substantive values as well as gives voice to marginalised people.

2. I believe IL is not truly international as its channels and processes are limited to certain
voters of international system. This can be analysed through the writing of Professor Anthea
Roberts, “Is International Law, international?” where she has provided a comparative
analysis of USA, UK, Russia and China. She has discussed the themes of difference,
dominance and disruption to showcase that IL is not representative of the vast majority of
international community.

Under the theme of difference, she has emphasised that IL is not uniform and its orientation
and outlook change depending on the nationality and culture of IL practitioners. In
comparison to indivisible school, she has argued that IL works in a divisible fashion and
cannot be seen through a single lens.

On dominance, she has argued that IL should not be dominated by the mainstream
narrative which is the western approach and should also respect other voices in the
international paradigm. She has highlighted the culture of dominance through the
understanding of globalisation. She has argued that the flow of men, material and ideas is
one-sided and only the Anglo-American ideas are diffusing into the east and south. This has
resulted in localised globalism in eastern and southern nations whereby their local
understanding is getting dominated by the western notions.

In the third theme of disruption, she is highlighting various factors which have changed the
understanding of IL, namely- technological advancements, international communication and
shift in geo-political power. With the developments in technology and international
communication though the world has come closer, most of the discussions related to IL
continue to take place only in the dominant/western academia. Rather than acting as a
universalizing force, they are acting as echo-chambers where only the dominant view is
being circulated and enforced. Further, there has been some shift in power structure as the
multipolar world has replaced the earlier structures of unipolar and bipolar world which
were dominated by USA and USSR. The power of eastern and southern nations is also rising,
however, IL has not seen a proportionate change.

Thus, Professor Roberts has highlighted that though there are developments happening
internationally, IL also has to change and give due consideration to other nations to remain
truly international and relevant.

Examples- The non-representative nature of IL can be analysed through the examples on

three themes discussed by Professor Roberts.

The difference in approaches of international lawyers can be seen in 2014 Russian

annexation of Crimea and South-China Arbitral Award. Western scholars categorised the
Russian annexation of Crimea as illegal while the Russian lawyers saw it as an act of self-
determination on the part of Crimean population. In comparison, when China refused to
adhere to South-China Arbitral Award, not only the western scholars frowned upon China
but most of the Chinese scholars also questioned China as they were educated in American
universities. China and Russia are united against the western hegemony but have different
positions on international environmental law and humanitarian interventions. Thus, these
examples shed the universalistic assumptions of IL as differences do exist at various levels.

Examples of dominance include the use of English language internationally as well as the
prevalence of American notions of democracy and sovereignty. English has become the
langua franca which puts the English-speaking nations at a greater advantage. Even UN, an
 international body having six official languages mostly uses French and English thereby
clearly indicating the dominance of western culture.

On disruptions happening internationally we can see that greater importance is being

attributed to G-20 consisting of both developing and developed nations as compared to the
erstwhile G-7 consisting of only the developed nations. Further, the west is also failing to
present a united front as seen in the discussions around Trans-Pacific Partnership
Agreement which was the brain-child of President Obama. At present, President Trump has
threatened to walk away from it which will lead to the ascendency of China. Similarly, there
have disagreements on the functioning of NATO between the western powers. Thus, these
changes in power structure are challenging the non-representative nature of IL which
focused only on the western/developed countries.

3. The State of Guasse was facing a civil revolt and alleged that rebel factions were being
supported by State of Adimia. Before the ICJ, State of Guasse claimed that Art.2(4) of UN
Charter on use of force has been violated while the State of Adimina argued that the
provision is inapplicable as it has made a multilateral treaty reservation. In response, State
of Guasse argues that reliance can be placed on Customary International Law.

The relationship between International Customary Law and treaty law can be analysed
through Art.38 of ICJ Statute dealing with the sources of international law and the landmark
case of Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA)
1986 whose facts are similar to the given facts. This Case dealt with military activities done
by or with the help of USA against Nicaragua. Similar to Adminia, USA had made a
reservation to the UN Charter. The ICJ relied on the international customary norm to finally
hold that USA violated the norms on non-use of force, non-intervention and sovereignty of
states but in doing so also discussed the relationship between treaty law and international
customs.

ICJ examined the relationship between treaty and customary international law in two
contexts- first, where the two are identical and second, where there exists difference in
rights and obligations between the two. For first, ICJ relied on North Sea Continental Shelf
Case to hold that if treaty law and customary international law are identical, they can
continue to exist side by side and the treaty does not supervene international custom in a
way that it ceases to exist. Further, ICJ relied on Art.51 of UN Charter on self-defence to
state that a treaty cannot recognise the existence of an international custom. The use of
word ‘inherent’ under Art.51 indicates that there is already a customary norm of self-
defence. On second context, ICJ held that if custom and treaty obligations are different then
customs can supplement the treaty provisions insofar as the treaty is silent. However, if they
are conflicting on same matter then in case of jus cogens norms, the customary
international law would prevail over treaty provisions while ordinarily a treaty would
supersede customs as the treaty is considered to be a lex specialis. On issues of non-use of
force and non-intervention, ICJ concluded that customary principles of international law
continue to co-exist with treaty provisions that have codified them.

Further, ICJ held that multilateral treaty reservations cannot preclude the Court from relying
on customary international law as customary norms exist independent of treaty provisions.
Thus, due to Vandenberg reservation of USA, the Court was only precluded from relying on
UN Charter and could continue to rely on international customary norms on use of force and
non-intervention.

Additionally, ICJ reiterated that both opinio juris and state practice are necessary for
determination of existence of an international custom. On state practice, ICJ clarified that
for a custom to come into force, it is not necessary that state practice should be completely
consistent and the inconsistency can be justified as a breach of rule. On opinio juris, ICJ
included General assembly (GA) Resolutions, statements of state representatives, and
findings of International Law Commission as evidence of opinio juris. This became
controversial as scholars argued that GA Resolutions are not opinio juris as the countries do
not consider them to be legally-binding. However, ICJ held that the effect of consent of a
state to a GA Resolution cannot be said to be a mere recitation. It is rather an acceptance of
the validity of rule mentioned in the GA Resolution. In this regard, ICJ held that principles of
non-use of force and non-intervention have attained the status of jug cogens norm as both
the elements of state practice and opinio juris are satisfied and any violation is a breach of
these principles and not the formation of a new custom.
In conclusion, based on the Nicaragua Case, ICJ can decide the claim of State of Guasse by
relying on the international customary norms on non-use of force and non-intervention
despite Adimia’s multilateral treaty reservations to the UN Charter.