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POLITICS OF INTERNATIONAL LAW

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 POLITICS OF INTERNATIONAL LAW
Chidozie Ezeozue

The meaning and sources of international law, the role of international politics in the
development of international law, the impact of nation-state system; politics and
international law of peace, war and neutrality; problems associated with recognition; law
of the sea; sovereignty; territoriality and out space. Furthermore, the place of politics,
diplomacy and international law in resolving those and other problems. And the functions
of international law in the international political community are all subjects covered by
politics of international Law.
The topic coined three different concepts, namely: politics, international and law. To
start properly, we will look at the meanings of these concepts separately.
Politics: The term politics has no universally accepted definition.
Easton (1971) saw politics as 'the authoritative allocation of values.' The postulation is that
values are desired in every society, that within the society, the interests of people therein
are divergent and that there should be someone or institution to allocate or distribute the
values. Price (1975), after stating that the word politics is derived from the ancient Greek
word 'Polis', meaning a city. And from 'polis', came the word 'politics', meaning 'citizen',
and 'politikos', an adjective meaning 'appertaining to the city, the citizen and citizenship',
defined politics as 'the study of the general principles on which government can be carried
on successfully.' This definition is not broad enough. Lasswell (1930) defined politics as
'who gets what, when and how', thus politics is shaping and sharing power. As our topic is
related to law as concerned nations or across national boundary, politics defined from
international perspective as postulated by Quincy Wright may suffice. Wright (1955)
defines international politics as “the art of influencing, manipulating or controlling major
groups in the world so as to advance the purposes of some against the opposition of
others.” The definition is, however, amenable to domestic sphere as well as international
sphere. From these definitions, it is clear that politics involves desires or interests of groups
or actors, most of the time conflictual and that there should be a body, institution or persons
to resolve the struggle or conflict.
Another concept contained in the topic is international. The word is coined from two
separate words, inter - meaning between among and national, pertaining to a nation.
However, since there are other actors in the international arena, apart from states or
nations, the word should include separate actors or entities across national boundaries.
Law: Black's Law Dictionary (2009) gives numerous definitions of the concept, law. We
take just two here: “The regime that orders human activities and relations through
systematic application of the force of politically organized society, or through social

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pressure, backed by force, in such a society; the legal system.” “The aggregate of
legislation, judicial precedents, and accepted legal principles; the body of authoritative
grounds of judicial and administrative action; esp., the body of rules, standards and
principles that the courts of a particular jurisdiction apply in deciding controversies
brought before them.”

(ii) Meaning of International Law:

Lord Denning (1977) defined International Law as “the sum of rules or usages
which civilized states have agreed shall be binding upon them in their dealings with one
another.” Without making any definite definition of international law, Harris (1998)
referred to it as “law of nations”, after stating that law can only exist in a society, and there
can be no society without a system of law to regulate the relations of its members with one
another. He argued that 'if then we speak of the “law of nations”, we are assuming that a
“society” of nations exists, and, the assumption that the whole of the civilized world
constitutes in any real sense a single society or community.... From these, it could be stated
that international law are rules governing the nation-states and other actors in their
relationships with one another, including how to cooperate, compete and resolve conflicts
among themselves.

(iii) Sources of International Law

Relying on Article 38 of the Statute of the International Court of Justice, Umozurike
(1999) merely enumerated four sources of international law, but joined two source in (d)
namely: (a) international conventions (b) international custom (c) the general principles of
law and (d) judicial decisions and teachings of most highly qualified publicists.
Harris (op.cit) gave 8 sources, including: (a) custom (b) treaties (c) general principle of
law (d) judicial decisions, (e) writers (f) general assembly (UN) resolutions (g) “soft law”
and (h) codification and progressive development of international law.
Ofoegbu (1980) discussed 6 sources, including : (a) customary practices of states, (b)
Treaties (c) Writings of Theorists and Publicists (d) The United Nations Sources (e)
general principles of law and (f) Unilateral acts of States.
Rourke (2007) relying still on Article 38 of the statute of the International Court of
Justice discussed 5 sources, including: (a) international treaties, (b) international custom,
(c) general principles of law (d) Judicial decisions and(e) international representative
assemblies.
Briefly, we will discuss 6 sources of international law here:

(a) Treaties: Treaties are primary source of international law. There are two major types
 of treaties namely bilateral, between two states and multilateral, among many states.
They establish rights and obligations that are binding on the concerned states.
Agreements between states are binding according to the principle of pacta sunt
servanda (treaties are to be served/carried out).

(b) International Customs: These are practices of states that have endured for a long
period, years, decades and centuries. Sometimes, long-standing customs are codified
in treaties. Many maritime rules began as customary practices.

(c) General Principles of Law: The foundation of the general principles of law is the
ancient Roman concept of jus gentius (the law of peoples). The international court of
Justice applies the general principles of law recognized by civilized nations. They
include maxims such as pacta sunt servanda, the sovereign equality of states; fair and
equal treatment; stare decisis and so on.

(d) Judicial Decision: Legal interpretations by courts set precedent according to the
doctrine of stare decisis. Specifically, Article 59 of the Statute of the International
Court of Justice rejected this principle, but in practice, judges on both domestic and
international courts cite other legal decisions in justifying their own rulings.

(e) Works of Publicists and Theorists: Writings of publicists and theorists are also
sources of international law. According to Harris (1998) “In the Court's statute 'the
teachings of the most highly qualified publicists' are assigned the same substantive
status, whatever that may be, as judicial decision. Upon a long view, there would seem,
to be no legal order wherein the publicists - a peculiar term - has played a greater part
than international law. Grotius is the father of the law of nations.” Perhaps, the best
known theorist, Hugo Grotius has remained a standard reference since 1604 and 1625
when his works, De Jure Praedae and De Jure Belli et Pacis, were respectively written.

(f) UN Resolutions: Since 1945, the United Nations through its General Assembly (the
legislative body) had made resolutions, numbering ten of thousands, which have
created new rights and obligations for international actors and thereby extending the
bases of international law. Even some of the resolutions/decisions of the UN have been
domesticated by many nations to also form part of their national laws.

(iv) The Role of International Politics in the Development of International Law

International politics has played a major role in the development of international law.

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Before 1945, international law was dominated by European nations. At the conclusion of
the World War II in 1945, many nations hitherto dependent on European powers became
independent and asserted their rights. The emergence of the former Union of Soviet
Socialist Republics (USSR) in the international scene helped to view the then existing
international law as the instrument of the capitalist West for world domination. The
situation was heightened by the Cold War between America and Western Europe on one
side and Soviet Union on the other side. While the Soviet Union saw the existing
international law as anti-masses and instrument of operation and suppression, the Western
Europe softened its hold on the international law to the benefits of the new and emergent
states in Africa, Asia and Latin America.
Yasuaki (2003) postulated that powerless nations were forced to accept even
disadvantages treaties because of the unequal relationship. Multilateral treaties which are
now engaged in because of international politics, predisposed smaller states to assert their
rights as they easily formed the majority, consequent upon their numerical strength.
Nations which participated newly in the existing international legal order, such as Japan
and China in the 19th Century and Afro-Asian nations after WWII, were actually forced to
be subject to that order which was generally discriminatory to them. In case of bilateral
treaties, powerless nations were forced to accept treaties which were disadvantages to them
because of the unequal relationship. Once the treaties were concluded, it was difficult to
denounce them unilaterally because of the legal and political power of the principle 'pacta
sunt servanda’. Unequal treaties which were imposed on - although theoretically,
concluded on the basis of the free will of the parties - the Otoman Empire, China and many
other non-European nations in the 19th and 20th centuries served as typical examples of
law as a tool of powerful nations.
In the case of multilateral treaties, however, there is less likelihood that those treaties
grossly deny the fundamental interests of smaller nations become international law so
easily because smaller nations occupy the majority in international conference where such
treaties are adopted. This is especially the case with multilateral treaties after World War
II, because such discriminatory ideas as 'white man's burden' lost legitimacy and
democratic principle gained legitimacy in international society.
Generally speaking, law which is assumed to be inherently general and reciprocal, is
relatively more advantageous to less powerful members of a society than bilateral
negotiations. The latter tends to reflect the naked power relationship between the two more
directly and manifestly than does the former.

(v) Law of Peace, War and Neutrality

Traditionally, international law regulates three major state issues, namely, peace situation,
war situation and neutral situation. Currently, in addition to the three situations
traditionally regulated, international law now attempts to regulate revolutionary, internal
warfare and terrorism. Here we are going to discuss international law on peace, war and
neutrality. The principles apply on both state versus state and internal settings.

(a) Law of Peace: Peace compose bulk of international relationships. Law of peace
regulates relationships which are diplomatic, commercial, cultural, economic and personal
in character. Included are imports and exports, investments, constructions,
communications and so on. Peaceful coexistence among states, international organizations,
multinationals, individuals and groups is the focus of law of peace. Moreover, international
law of peace provides for recognitions of governments, states and other actors. Again,
treaties-makings, their signings and ratifications among others are governed by law of
peace. Finally, settlement of disputes are within the confines of law of peace.

(b) Law of War: Law of war was the focus of most early writings on international law and
has continued to be primary concern of legal scholarships, even though it evolved from
international custom. Of interest here are that war must be declared by legitimate authority;
hostile measures should be proportionate to the threat or provocation which led to war;
prohibition of certain weapons; ceasefires and armistice should be applied when need
arises to evacuate dead and wounded persons as well as to exchange dead, prisoners of war
or those missing in action.

(c) Law of Neutrality: This regulates the position of states which do not participate in war
or hostilities, who are seen as neutral as well as their rights and obligations towards the
belligerents. The Geneva Convention of 1949 and the Hague Convention of 1954 provided
what are expected of neutrals including to play active parts in the protection of war victims
as well as taking active part in arranging armistice, its supervision and administration.
Inviolability of the territory of neutral states, that is, not moving belligerents' troops and
ammunitions through neutral states, are some of the rights of neutrals.

(vi) Problems Associated with Recognition

Recognition has been said to possess controversial legal significance. Dictionary.com
defined recognition as an act or recognizing or the state of being recognized. Identification
of something as having been previously seen, heard, known etc. The perception of
something as existing or true; realization. www.businessdictionary.com defines it as:
acknowledgement, cognizance, or confirmation of the particulars (amount, number,
qualification, size). Merriam-Webster defined recognition as the act of recognizing: such

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as: acknowledgment of the political existence of a government of a nation: knowledge or
feeling that someone or something present has been encountered before.
It is our view that recognition can be defined as the formal acknowledgement by a state of
the certainty of hitherto uncertain fact about something, which is the independence of a unit
claiming to be a state and acceptance of the corresponding consequence of such a
declaration.
There are two views on how recognition could be made, namely constitutive and
declaratory.
According to Constitutive view, through recognition only and exclusively a state becomes
an international person and a subject of international law. If the constitutive view is to be
relied upon, some serious difficulties will be created. In a situation a set of states
recognizes as a state and another set of states refuses to recognize the state, it means the
state is both an international personality and not international personality at the same. An
absurdity really. A more serious difficulty if we rely only on constitutive view of
recognition only is that the doctrine gives the impression that an unrecognized state has
neither rights nor duties at international law. If we accept the view that a state does not have
legal existence before recognition, enforcement of rights and duties may be very difficult
in unrecognized states.
However, the second view which is the practice of states is that recognition is a declaratory
act and not constitutive. Declaratory act is that recognition does not bring into existence a
state which does not exist before. It is a declaratory principle that whether or not an
existing state is recognized, it has right to be treated as a state. From the above constitutive
and declaratory views, it is obvious that there is no universally accepted view of
recognition. International law as it is presently allows different states to act on different
views of the law application to the same state of facts. And the situation is really a problem
that is associated with the issue of recognition.

(vii) Law of the Sea

The law of the sea was an outcome of the completed effort of the International Law
Commission (ILC) in 1958. During its early years, the ILC embarked on the preparation of
draft articles on the high seas and territorial sea. By 1956 the ILC had, at the request of the
UN General Assembly, produced a report covering all aspects of the law of the sea of
contemporary importance. This report, the product of painstaking analysis and careful
drafting and illuminated by the observations of government on its early drafts, formed the
basis of the work of the first United Nations Conventions on the Law of the Sea (UNCLOS
1), held at Geneva in 1958 (Churchill & Lowe, 1988).
 UNCLOS 1 which was attended by 86 states adopted 4 Conventions, including:
Convention on the Territorial Sea and the Contiguous Zone; the Convention on the High
Seas; the Convention on the Continental Shelf; and the Convention on Fishing and
Conservation of the Living Resources of the High Seas.
The breadth of the territorial sea was a major problem the 1958 conference could not
solve. UNCLOS II was convened in 1960 to discuss this and the associated question of
fishery limits. It failed by one vote to adopt a compromise formular providing for a six mile
territorial sea plus six-mile fishery zone.
The UNCLOS III was convened in 1973 which had its origin in the Sea Bed Committee
established in 1967 by the UN General Assembly to examine the question of the deep sea
bed lying beyond the limits of national jurisdiction over the continental shelf, following a
proposal by Dr Arvid Pardo, the Maltese ambassador. No special provision for the legal
regime of the deep sea bed was made by the UNCLOS I because its great mineral wealth
had not been appreciated and the technology necessary for its exploitation was unavailable
at that time.

Sources of Modern Law of the Sea

Article 38 of the Statute of the International Court of Justice, which directs the Court to
apply, in deciding international disputes brought before it, put forward the sources of
international law, which the law of the sea is a component. They have been discussed
above.

The United Nations Conference on Law of the Sea III (UNCLOS III)
As stated by Harris (1998), the Geneva Conventions were considerable achievement, but
were deficit in many respects. In particular, they did not contain a rule in basic question of
the width of the territorial sea or on the related question of the fishing rights, if any, of the
coastal states beyond their territorial sea. Scientifically and politically, they have been
overtaken by events as the development of new techniques for underwater exploitation of
oil and other mineral resources has made it necessary to reconsider the regime of the
continental shelf and to establish a regime for the deep sea bed. These and other
considerations, including the fact that most post-colonial states had no say in the making of
the Geneva Conventions of 1958, led to decision to call a third United Nations Conference
on the Law of the Sea (UNCLOS III).
After nine years of negotiations (1973-82), the Conference adopted the 1982
Convention on the Law of the sea. The convention covers, in its 320 articles and nine
annexes, all of the ground of the four 1958 Conventions and more. Many of its provisions
repeat verbatim or in essence those of the Geneva Conventions. Some contain different or

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more detailed rules on matters covered by them. Those on exclusive economic zone and the
deep sea-bed, spell out new legal regimes. The main changes or additions are the
acceptance of a 12 mile territorial sea, provision for transit passage through international
straits, increased rights for archipelagic and landlocked states, stricter control of marine
pollution, further provision for fisheries conservation, acceptance of 200 mile exclusive
economic zone for coastal states; changes of the continental shelf regime; and provision for
the development of deep sea-bed mineral resources.
It may be pertinent to note that the underlying principle of the 1982 Convention was
stated in its preamble; thus:
Contribute to the realization of a just and equitable international economic order which
takes into account the interests and needs of mankind as a whole and, in particular, the
interests and needs of developing countries, whether coastal or landlocked.

(viii) Sovereignty
Sovereignty is the most important feature of states. Other features are territory,
population, diplomatic recognition, internal organization and domestic support.
Sovereignty is the supreme or absolute power or authority which enables states to
exercise control over its territory and citizens without accounting to any external authority.
Rourke (2007) was of the view that when applied to states, it means they have exclusive
legal right to govern the territory and people within then- borders and do not recognize the
legal legitimacy of outside authority. Sovereignty also denotes legal equality among states
as each state has one vote in UN General Assembly and many other international
assemblies.
Mingst (1999) postulated that the formulation of sovereignty - a core concept in
contemporary international relations - was one of the most important intellectual
developments leading to the Westphalia revolution. That much of the development of the
notion is found in the writings of French Philosopher, Jan Bodin (1530-96). Bodin stated
that sovereignty is the “absolute and perpetual power rested in a common wealth”, which
resides not in an individual, but in a state, thus perpetual. That sovereignty is “the
distinguishing mark of the sovereign that he cannot in any way be subject to the commands
of another, for it is he who makes law for the subject, abrogates law already made, and
amends obsolete law.”
Thus, the embrace of the notion of sovereignty by all states enable all states, big or
small, not to be answerable to other states in the conduct of their own affairs as they are
seen as legal equals.

(ix) Territoriality and the Outer Space

 One of the features of a state is territory. A state must have a territorial base, a
geographically defined boundary among other important features, for it to be considered a
state. No state can exist in vacuum.
Black's law Dictionary defined territory as “a geographical area included within a
particular government’s jurisdiction; the position of the earth's surface that is in a state's
exclusive possession and control.” It also defined territoriality as “the principle that a
nation has right of sovereignty within its borders.” It went further to state that:
“Three maxims formulated by the seventeenth century Dutch Scholar Ulrich Huber
Undergird the modem concept of territory: (1) a state's law have force only within the State
s boundaries; (2) anyone found within the State's boundaries is subject to the State s
authority; and (3) comity will discipline sovereign exercises of authority so that the
territorial effect of each state's law is respected.
Outer Space has been defined by Black's Law Dictionary as: (1) “the known and
unknown areas of the universe beyond airspace.” (2) International law, “the space
surrounding the planet that by United Nations treaty is not subject to claim of appropriation
by any national sovereignty.

On the Outer Space Treaty in question, Black's Law Dictionary has this to say:-
International Law. The short title of the United Nations Treaty on Principles Governing the
Activities of States in the Exploration and use of Outer Space, including the Moon and
Other Celestial Bodies, 18 U.S.T. Pt. 3, at 2410 (Jan. 27, 1967). The treaty stipulates that,
because space exploration is in the interest of all humanity, no nation may claim territory,
establish military bases, or station weapons on any planet or a moon. The treaty also
declares that international law and the United Nations Charter apply in space.

From the above, it is clear that issue of territoriality deals with sovereign control of
territory and that no state can claim the outer space as part of it's territory and to exclusion
of other states.

(x) The Place of Politics, Diplomacy and International Law in Resolving

International Problems
Briefly, what we can say here is that dialogue, diplomacy and international law should play
major roles in resolving international problems. Conflict, war and associated techniques
should not be employed in resolving international problems. A world without war is
definitely better. Even when war is engaged in, the final settlement is always through
dialogue, diplomacy and international law principles.

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 REFERENCES
Easton, D. (1971). The Political System: An enquiry into the state Political Science, 2nd ed.
New York, Alfred Knopf.
Lasswell, H. (1930). Politics: Who Gets What, When and How. New York.
Price, J. H. (1975). Comparative Government, Second Ed. London, Hutchinson & Co Ltd.
Rourke, J.T. (2007). International Politics on the World Stage, Eleventh Ed. Boston, Mc
Boston, Mc Graw Hill.
Umozurike, U.O. Introduction to International Law. Ibadan, Spectrum Books Limited.
Wright, Q. (1955). The Study of International Relations. New York, Appelton
Century-Croft).
Yasuaki. O. (2003).”International Law in and with International Politics: The Functions of
International Law in International Society in www.ejil.org?pdfs Vol. 14 no 1.

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