Limitations on National Power

International Morality, World Public Opinion,

Balance of Power and International Law
The major limitations of national power are as
follows:
1) International Morality:
Meaning - International morality or ethics is the
combination of the standards, norms and values
which nation states and international organizations
think they should observe in their relations with each
other. These norms or values may originate from
desires and attitudes, from social customs and
traditions; they are regularly influenced by the
developments in the sphere of science and
technology.
One of the most crucial and clearly understood items in
this code is the obligation not to harm others or-inflict
unnecessary suffering on other human beings except
for some higher objective which is held, rightly or
wrongly, to justify derogation from this general
obligation.
Operation of International Morality.
Had the struggle for power taken independent course
it would have converted the world into the
Hobbesian state of war and might would have been
the right In practice, moral norms operate in the
civilized world and in their presence power struggle
cannot go unbridled.
To preserve society, in the words of Morgenthau,
certain moral precepts have been put forward
which the statesmen and diplomats ought of take
to heart in order to make relations between nations
more peaceful and less anarchic, such as the
keeping of promises, trust in other words, fair
dealing, respect for international law, protection of
minorities, repudiation of war as an instrument of
national policy.
Morgenthau further Explains the ways through
which international morality operates to protect
human life and to check the occurrence of war.
First, international morality protects human life in
peace by renouncing the policy of assassination of
the leaders of the opponent countries, technique
of giving poison, treachery, etc. Such policies may
be still desirable and possible but morally these
are rebuked and difficult to execute.
“Moral limitations of the same kind protect in times
of peace the lives not only of outstanding
individuals but also of large groups, even of whole
nations whose destruction would be both
politically desirable and feasible.”
Second, similar moral limitations Operate in times of war. They
protect civilians and those combatants who are unable or
unwilling to fight. Both statesmen and army leaders admit that,
as only the armed forces participate in combat activities, it is
undesirable to make civilian population major target of their
attack.
If the army commanders isolate this moral principle of not
attacking civilian population unnecessarily or beyond
reasonable limits and indulge in ruthless civilian killings, they
have to face a condemnation at home and abroad. Similarly
morality prohibits that those who were no longer engaged in
actual warfare because of sickness, wounds, disability, or
because they have become prisoners of war should not be
harmed. Such a humanitarian approach towards the prisoners
of war and disabled soldiers was developed during the
seventeenth and the eighteenth centuries in Europe and
culminated in adopting a certain treaties in this respect by
many states in the nineteenth and the twentieth century’s.
The Geneva Convention of 1864, 1906, 1929 and 1949 as
well as the Hague Conventions of 1899 and 1907 laid
down certain specific conditions regarding the treatment
of the sick and wounded soldiers by the other side.
Third and final, there is moral condemnation of war in the
present century. War as an instrument of foreign policy
has been repudiated on moral grounds and all nations are
keen to avoid it as far as possible. The eschewing of war
itself has become an aim of statecraft only in the last half
century. The two Hague Peace Conferences of 1899 and
1907, the League of Nations of 1919, the Briand-Kellogg
Pact of 1928, the League of Nations, and the United
Nations in the present times all have the avoidance of war
itself as their final goal.
After Second World War also many powerful
states avoided war even at the huge cost of
their political and military advantage. The
desire to eschew war outweighed all other
considerations of national policy.
The attempts of all the great powers to confine
the Korean War to the Korean peninsula and
thus prevent it from developing into a third
world war and the self-restraint practiced by all
of them during many international crises (e.g.
Cuba, Suez, Kuwait etc) since the end of
Second World War are striking example of a
basic change in the attitude toward war .
Sanctions
Moral precepts act as restraint Owing to the following reasons or
sanctions as explained by Frankel. The first is found in the
sanctions imposed for violating the internationally accepted
moral standards of conduct which is in social disapproval. All
countries, however powerful, are sensitive to the dangers of
losing the reputation and prestige of acting morally. All
countries are expected to abide by the generally accepted
standards of conduct, and are fully aware of the disrepute
arising if they are not obeyed.
Since all political actions come under public scrutiny and is nearly
always morally evaluated, the moral principles frequently
professed as veil for selfish national policy assume a momentum
of their own in order to avoid the unwelcome reputation of
hypocrisy and duplicity, however insincere they may have been
in their protestations, statesmen usually find it more convenient
to obey the professed norms than to violate them. In other
words, domestic as well as world public opinion compel leaders
to follow certain ethical standards in their international
dealings.
The Second sanction behind restraint can be found in the moral
sentiments and consciences of the statesmen or ruling elites
themselves. Both Great Britain and the United States in the
nineteenth century enjoyed an unequalled moral opportunity by
being exceptionally secure; moreover, international moral rules
closely approximated their domestic moral codes internalized by
their statesmen. These statesmen preferred to act morally rather
than otherwise, unless, of course, a really vital national interest
appeared to be at stake. Similarly, although to a lesser extent, it
can be said about statesmen in other times and places.
Finally, moral restraint operates much more effectively in the
relations among friends and allies than among rivals and
enemies. This can be explained by the principle of reciprocity
good behaviour which is expected to be reciprocated is not only
good in moral terms but is also beneficial to all concerned. Thus
international morality limits the use of power a country possesses
to achieve the desired goals. States do not pursue certain ends
and use certain means because of moral limitations.
World Public Opinion
The nation’s policies or activities directed to the pursuit
of their objectives can be influenced, modified, or even
halted under the pressure of world public opinion. No
nation can generally dare to use the power at its
disposal to achieve selfish ends in violation of the world
public Opinion. But as a concept it is more elusive and
lacks analytical precision.
World public opinion was considered to be the force
behind the League of Nations. International law, the
decision of the Permanent Court of International
Justice, the Briand-Kelloge Pact etc. were to be
executed through world public opinion. The United
Nations is an important instrument of the World Public
Opinion and vice versa. The General Assembly of the
United Nations is decorated to be the Open conscience
of the world.
Meaning
In order to understand world public opinion we will first define the term
public opinion. According to Bryce, “This term is commonly used to
denote the aggregate of the views men held regarding matters that
affect or interest the community. Thus understood, it is a congeries of
all sorts of discrepant notions, beliefs, fancies, prejudices, aspirations.”
In the words of Morgenthau, “World public opinion is obviously a public
opinion that transcends national boundaries and that unites members
of different nations in a consensus with regard to certain fundamental
international issues. This consensus makes itself felt in spontaneous
reactions throughout the world against whatever move on the
chessboard of international politics is disapproved by that
consensus.” Whenever a state acts against the mankind or do a wrong
thing, humanity will react, regardless of national affiliations, and at
least try to mend it through spontaneous sanctions upon the erring
state. In this way, international society will either compel it to abide by
its standard or shut it out from society for its erring behaviour.
Existence and Operation
Whether world public opinion really exist and operate or
not, there are two different views on it . One is
negative and emphatically denies its existence. The
other positive one admits its existence and
effectiveness. Notwithstanding the existence of world
public Opinion, it could not operate as restraint in the
following instances, according to the negative
viewpoint supported by Morgenthau.
These instances are-the Japanese aggression against
China in the thirties, the German foreign policies since
1935, the Italian attack against Ethiopia in 1936, the
Russian suppression of the Hungarian revolution in
1956, Czechoslovakian revolution in 1968 and
intervention in Afghanistan in 1980, China’s
annexation of Tibet in 1959, Iraq’s annexation of
Kuwait in 1990 etc.
Morgenthau has made mention of some developments
which give rise to a myth regarding the existence of
world public Opinion whereas in fact there is no such
thing. First is the psychological unity of the world.
Today, all human beings want to have security, liberty,
freedom, peace and order.
These are some of the minimum set of standards, which
all human beings seek. Morgenthau remarks, “Any
violation of the standards of this world public opinion,
against and by whomever committed, would call forth
spontaneous reactions on the part of humanity for in
view of the hypothetical similarity of all conditions, all
men would fear that what happens to one group might
happen to any group.” But in actual life these set
standards have different meanings in different
environments and countries.
Peace, liberty, justice, democracy etc. are interpreted differently by
different nations. An action condemned by one group as immoral
and unjust is appreciated by another as the opposite.
Thus Morgenthau observes, “the contrast between the community
of psychological traits and elemental aspirations, on the one hand,
and the absence of shared experiences, universal moral convictions,
and common political aspirations, on the other, far from providing
evidence for the existence of a world public opinion, rather
demonstrates its impossibility, as humanity is constituted in our
age.”
Second, in the modern age, the technological unification of the world
has also created an impression of world public Opinion, if it has not
actually created it. A world public Opinion tends to develop because
Of the extension of the radius and rapidity of communication by
inventions in ocean, land and air transportation and in the press,
postal service, telecommunication and satellite communication
system. With more and more means of international ,
communication between governments and between people, a world
public opinion tends to develop and influence government
actions. But Morgenthau points out that even if we lived in a world
actually unified by modern technology with men, news, and ideas
moving freely regardless of national boundaries, we would not have
a world public opinion.
Third is the barrier of nationalism and national bias.
The particular nationalism moulds and directs the minds of men that
infused their particular meanings into the good words of democracy,
freedom, security and peace paints them with their particular colour
and makes them symbols of their particular aspirations. In such a
situation how world public opinion can exist and operate effectively.
It is often noticed that the same issue agitates public mind in many
countries but public opinion formed about them in different
countries is not the same. It is mainly due to the national bias of
different peoples. For example, public opinion in various capitals on
lndo-Pak war in 1971 was not similar. The US and China supported
Pakistan whereas the USSR was with India.
But at times on some burning issue different countries of the world
express similar public opinion in one voice albeit national bias and
national conditioning. One such example is of Vietnamese War when
large scale destruction of life and property by US involvement
aroused strong public opinion against the US and ultimately she had
to retreat from Vietnam.
These two examples of the Indo-Pak war and the
Vietnam war reveal the ambiguity and the complexity
of world public opinion in certain circumstances as
well as its uniformity in many other ”situations”.
If the issue is very serious and the attitude of a particular
power is clearly unjust and provocative, it does arouse
world public opinion in favour of the victims and
influences foreign policies in various capitals to some
extent. Despite the national bias, it would be incorrect
to deny its existence altogether like Morgenthau. It
has played a crucial role in shaping policies in the
countries where the press and other organs of mass
media are free compared to those countries where
they are government controlled. After the
introduction of Glasnost (openness) Soviet Union’s
foreign policy has witnessed a notable change.
International Organizations
The coming into existence of international organizations
like the League of Nations and the United Nations has
also kept the power of the states within limits. At
present, the member states are expected to act in
accordance with the principles enshrined in UN
Charter. It is correct that the United Nations cannot
intervene in the internal affairs of any state except
when they pose a threat to the peace, but it certainly
acts as a check on the unfair and unlimited use of
power by the states and hence is a limitation on
power. Chapter VII of the UN Charter incorporates the
theory of collective security which also has a deterrent
effect on the power ambitions of the states. Since its
formation, UN has done remarkable work not only in
preserving peace but also in limiting the ambitions of
the super- powers.
Disarmament
Disarmament efforts in and outside the UN have
also restricted the national power. The steps
towards disarmament have acquired much
significance in our times. An effort has been
made through several agreements, treaties
and conventions to control the use of nuclear
and conventional weapons that have the
potentialities to destroy the entire world. To
some extent this also helps in the reduction of
power.
International Law
International laws are rules that regulate the conduct of nations at
international level. Most nations endeavour to be known in the
eyes of the world as law-abiding nations; and in achieving this goal
they accept the obligations of limitation entailed by international
law. If each nation uses its power in unlimited ways against her
rivals, the world society would perish. There would be no peace or
stability.
It would be perpetual state of war. To avoid this a code of conduct in
the nature of international law is essential to limit the national
power. Strictly speaking, international law is not a true law as it
suffers from many short coming such as the absence of a common
law making, law enforcing or law adjudicating body. Its execution
is dependent upon the will and convenience of the states. The
execution of these laws by consent or use of external force
restricts the scope of use of national power by any state.
• The term International Law or Law of Nations has
been used in contradistinction to the National
Law or Municipal Law which means the law of
country. International Law is, generally, above and
outside, the national laws of the various States and
to some extent operates on the territories of all the
States.
• International Law deals with States as legal and
political entities and it applies to all the States
equally without any regard to their size and power.
However, the powerful States have a peculiar
tendency to interpret the principles of international
law in such a manner as to suit their interest and
convenience.
Today the scope of international law has
extended from the preservation of peace to
regulate the various activities of international
life, like space expeditions, ocean floor
explorations, protection of human rights and
global environment, management of
international financial system, etc. All these
factors and developments emphasize the need
for an international law in the modem
scenario.
 Definition of International Law

• The words international law was used for the

first time by eminent British jurist, Bentham in
1780. Since then, these words have been used
to denote the body of roles which regulate
the relations among States.
• Hugo Grotius is considered as the Father of
International law.
Oppenheim's definition
Professor Oppenheim has defined international law
in the following words:
• Law of Nations or international law is the
name for the body of customary and
conventional rules which are considered
legally binding by civilized States in their
intercourse with each other.

• The definition given by Oppenheim in 1905

has become obsolete and inadequate.
Brierly
The law of nations or international law may be
defined as the body of rules and principles of action
which are binding upon civilized States in their
relations with one another.

Hackworth similarly defines: International Law

consists of a body of rules governing the relations
between States.

Queen v. Keyn, Lord Coleridge, C.J. defined

international law as: The law of nations is the
collection of usages which civilized States have
agreed to observe in their dealings with one another.
Gray:
International Law or the law of nations is the name of
a body of rules which according to the usual
definitions regulate the conduct of States in their
intercourse with each other.
Kelsen has also given a similar definition.
Cobbett:
International Law may be described as the sum of the
rules accepted by civilized States as determining their
conduct towards each other, and towards each
other's subjects.

The above definitions can also be criticised in the

same way as Oppenheim's definition has been
criticised. The definitions are inadequate to represent
modem international law.
Modern definitions

Fenwick:
• “International law may be defined in broad terms
as the body of general principles and specific
rules which are binding upon the members of the
international community in their mutual
relations.”
• The definition takes into account the changes that
have taken place after the Second World War.
The words members of the international
community' include States, international
institutions, individuals and non-State entities.
The term general principles' is also incorporated
in the definition.
Whiteman:
• “International law is the standard of conduct,
at a given time, for States and other entities
subject thereto.”
• A brief but adequate definition; the words
other entities subject thereto' may include
international organisations, individuals and
non-State entities.
• Whiteman has also emphasised dynamic
aspect of international law: International Law
is, more or less, in a continual state of change
and development.
Starke:
• International law may be defined as that body of
law which is composed for its greater part of the
principles and rules of conduct which States feel
themselves bound to observe, and, therefore, do
commonly observe in their relations with each
other, and which includes also, the rules of law
relating to the functioning of international
institutions/organisations, their relations with
each other, and their relations with State and
individuals; and certain rules of law relating to
individuals and non-State entities so far as the
rights and duties of such individuals and non-
State entities are the concern of the international
community.
• The definition of Starke takes into account the
changing character of international law and truly
reflects the present position of international law.
However, if an entity not enumerated by Starke
ever comes within the scope of international law
with the passage of time; the definition would
again be subjected to criticism. Thus, the
definition does not stand correct for all times to
come.
Schwarzenberger:
• International law is the body of legal rules which
apply between sovereign States and such other
entities as have been granted international
personality.
 Sources of International Law
1.Treaty law
• Treaties and Conventions are written agreements that
states willingly sign and ratify and as such are obliged to
follow. Such agreements, which are also called statutes
or protocols, govern the mutual relations between
states. They are, however, only binding on those states
that have signed and also ratified the particular treaty.
• The Vienna Convention of the Law of Treaties of 1969,
sets out the fundamental legal rules relating to treaties.
The Vienna Convention defines a treaty, identifies who
has the capacity to conclude a treaty, and outlines
treaty interpretation, disputes, and reservations.
The basis of treaty law is ‘pacta sunt servanda’, which
means that agreements must be honoured and adhered
to.
2. Customary international law
• Customary international law is made up of rules that
derive from "a general practice accepted as law".
Customary international law is comprised of all the
written or unwritten rules that form part of the general
international concept of justice.
• Unlike treaty law, which is only applicable to those states
that are parties to the particular agreement, customary
law is binding upon all states, regardless of whether they
have ratified a treaty.
• Unlike treaty law, customary international law is limited
in that it is not codified in a clear and accessible format
and the content of the rules is generally less specific that
what you may find in a treaty. However, as a source of
IHL, customary international law is of fundamental
importance in armed conflict due to the limited
protections afforded to internal conflicts by treaty law and
the lack of ratification of key treaties.
• Customary international law exists
independently from treaty law and in
2006 the Independent Commission of
the Red Cross (ICRC) published a
collection of the rules of IHL
considered to be customary in nature.
They identified 161 Rules of customary
international law.
How does a rule become customary international law?
When states respect certain rules consistently in their
international and internal relations, with legal intentions, these
practices become accepted by the international community as
applicable rules of customary international law.
There are two criteria for identifying a rule as part of customary
international law: state practice and legal nature of that practice
(opinion-juris)
State practice (uses) - Customary law is confirmed through the
behaviour of states (objective criteria), manifested through their
official statements and actions.
Legal nature of practice (Opinion Juris) is the expressed opinion
of states, individually or collectively, that their actions have a
legal and not a mere policy basis.
In short, customary international law is based on consistent
actions by the majority of the international community. Examples
of customary international law are the prohibition on the
arbitrary deprivation of life, the prohibition on torture, and the
rule that civilians and civilian objects cannot be the subject of
direct attacks during armed conflict.
3. Judicial decisions
• The decisions of international and municipal courts and the
publications of academics can be referred to, not as a source
of law as such, but as a means of recognizing the law
established in other sources. In practice, the International
Court of Justice does not refer to domestic decisions although
it does invoke its previous case-law.
• There is no rule of Stare decisis (Stare decisis is a legal
doctrine that obligates courts to follow historical cases when
making a ruling on a similar case. Stare decisis ensures that
cases with similar scenarios and facts are approached in the
same way)in international law. The decision of the Court has
no binding force except between the parties and in respect of
that particular case. Nevertheless, often the Court would refer
to its past decisions and advisory opinions to support its
explanation of a present case.
• Often the International Court of Justice situated in Hague
Netherlands will consider General Assembly resolutions as
indicative of customary international law.
4. Juristic writings

• Article 38(1)(d) of the International Court of

Justice Statute states that the 'teachings of
the most highly qualified publicists of the
various nations' are also among the
'subsidiary means for the determination of
the rules of law'. The scholarly works of
prominent jurists are not sources of
international law but are essential in
developing the rules that are sourced in
treaties, custom and the general principles of
law. This is accepted practice in the
interpretation of international law.
 SCOPE OF INTERNATIONAL LAW
1. Laws of Peace- These include laws relating to
states as subjects of international law pertaining
to the birth, recognition and birth of a state,
succession, territorial sovereignty, rights and
duties of states, jurisdiction , laws of the sea and
maritime highways, state responsibility,
nationality, international economic and
monetary law, disarmament, development and
environment.
2. Laws of War – International Humanitarian law(IHL)
often called the ‘law of armed conflict’ and earlier
referred to as the ‘law of war’ is a special branch of law
governing situations of armed conflict that is WAR.
• IHL seeks to mitigate the effects of war by limiting the
choices and methods of conducting military operations
and also obliges the belligerents(agressors) to spare
persons who do not or no longer participate in hostile
actions.
• In the 1st peace conference in Hague in 1899, 4
conventions were established, in the 2nd conference 13
conventions. In 1907 Conventions on the Laws and
customs of war on land was adopted. It contained
provisions on the treatment of prisoners.
3. Laws of Neutrality : Neutrality, the legal status
arising from the abstention of a state from all
participation in a war between other states, the
maintenance of an attitude of impartiality toward the
belligerents, and the recognition by the belligerents of
this abstention and impartiality. Under international
law, this legal status gives rise to certain rights and
duties between the neutral state and the belligerents.
The laws concerning the rights and duties of neutrality
are contained, for the most part, in the Declaration of
Paris of 1856, Hague Convention V, 1907 (neutrality in
land war), and Hague Convention XIII, 1907 (neutrality
in maritime war).
• The most important of the rights that result from a
state of neutrality is the right of territorial integrity.
Belligerents may not use a neutral’s territory as a base
of operations or engage in hostilities therein. This right
applies not only to neutral territory and water but
extends to air space above that territory as well.
• Under the Hague Rules of Air Warfare, 1923 (which
never became legally binding), neutrals have the right
to defend their air space from passage of belligerent
aircraft. The emergence of ballistic missiles and space
satellites as tools of warfare, however, has raised
questions regarding the extent of a state’s upper
boundary.
• A neutral also has the right to maintain
diplomatic communications with other
neutral states and with the belligerents;
the right to demand compliance with its
domestic regulations designed to secure
its neutrality; and the right to require
belligerents not to interfere with the
commercial intercourse of its citizens,
unless such interference is warranted by
international law.