Jahanzaib Durrani

LL.B Hons. (London)

LL.M (Nottingham, UK)
Email: j.durrani@rsilpak.org
Over View of the Lecture
• The Nature of International Law and the International System.
This lecture aims to:

• Remove the misconception that International Law is not really law and how
this area, despite its weaknesses is actually an ‘effective’ system to a large
extent.

• Define what International law is and its two types?

• Examine the nature and qualities of International Law and introduce you to its
significance.

• Inform you about its application to our daily lives.

• Relevance of International Law for Pakistan and its domestic and foreign
policy objectives.
Why International law?
• UN Resolution 44/23 declared “the period 1990-1999 the United
Nations Decade of International Law.”

• The Resolution says, “To encourage the teaching, study,

dissemination and wider appreciation of international law.”

• It is an important area about which very few people are familiar with
and its importance is growing on everyday basis.

• People argue that if such a law exists, where is it? (Iraq, Afghanistan,
Syria)- Examples of ‘Might is Right’ Rule…Also applicable to our
domestic law!

• However, this is an oversimplification of the concept.

Is International Law, law or not?
• Is it a law in a traditional sense or not?

• People immediately dismiss International law as a law when

they compare it with a national law.

• The comparison is incorrect and oversimplified.

• Although state organs (Legislature, Executive and Judiciary) are

missing formally yet the law remains enforce and applicable.
The Comparison is Manifestly Unjust
• Domestic Law & International Law are:

i. Two different doctrines

i. They arise from two different jurisprudence

ii. They are applicable on different subjects

i. They have a different framework

• Comparison will give you a misguided conclusion. (Apples can’t be

compared with oranges)

• Preconceived notion on International law will disappoint you.

Is IL really ‘Law’?
Vertical Relationship with the Community

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Introduction to International Law- IR-503 (Lecture - I)
Domestic Law
• Elections

• Legislature comes into being

 Legislature: make laws (Legislation)

• Laws create obligations on its subjects

 Executive: effectively Implements laws on the subjects (Hierarchy: from a

constable to PM which is there to implement laws)

• Law has to be in the shape of a command. Otherwise its not enforceable

(John Austin Theory)

 Judiciary: checks the enforceability of laws/discretional powers

Criticism on International law

• International law lacks this (domestic) apparatus in strict sense.

• Hence, it is important to answer this fundamental

question/criticism against International law.

• Answer will highlight the peculiarity of International law from

traditional law.
Legal Apparatus of International Law
• Legislation:
i. UNGA passed resolution to make a convention (E.g. against
Corruption)
ii. Countries give their recommendations
iii. Agreed test is called a “Rolling Text”
iv. During first and Second reading: Negotiation Process (Give &
Take)
v. Three Readings of Treaty Draft (1st Session, 2nd Session and 3rd
Session)
vi. Quality Inputs of high profile standards from various experts
groups/observers/concerned organizations (NASA, TI,
Agriculturists)
vii. After third reading the text is finalised.
Executive/Enforcement:
What happens if compliance is not voluntary?
1. High Political Cost and Diplomatic Alienation:
i. Loss of influence and trust may reduce trade, foreign
aid, or cause other States to refuse to enter into
negotiations.
ii. Internal Pressures: political parties, lobbyists, think
tanks, pressure groups, civil society, etc.
ii. Many treaties have their own enforcement
mechanism [Comprehensive Nuclear-Test-Ban
Treaty (CTBT)]
iii. Loss of legal rights and Reciprocal Action
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Introduction to International Law- IR-503 (Lecture - I)
Executive/Enforcement

• Psychological Rubicon: violating IL is not taken lightly.

International condemnation, isolation, sanctions, force, etc. may
be the result of such violations.

• (HQ Agreement b/w UN & US; Yasir Arafat’s controversy)

Common Good: needed in order to ensure a stable and orderly

international society.

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Introduction to International Law- IR-503 (Lecture – I)
Executive/Enforcement
4. Sometimes the loss goes beyond reciprocity.
1. Falklands: UK broke diplomatic ties with Argentina
2. Seizure of US Embassy in Tehran: US froze Iranian Assets
3. Israel’s attack on Iraq’s Nuclear Reactor: Expulsion from
IAEA
4. Bosnia Genocide: EU Complete trade sanctions on Serbia
5. Violations of HR by Nigeria: Expelled from the
Commonwealth

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Introduction to International Law- IR-503 (Lecture - I)
Checks and Balance In Int’l Law
(Judiciary)
• No concept of Judiciary as we have in Domestic Law.

• However, Many judicial forums are available within treaties. For

example- UNCLOS; Judicial forum: Seabed Authority/Chamber.

• Indus Water Treaty: A full-fledged Mechanism is there to

resolve disputes. (Mechanism for Neutral Experts and
Arbitrators).

• Bilateral Investment Treaties (BITs): For example: PAK V

Malaysia: Mechanism for Arbitration

• International Court of Justice: takes up political matters and

provides legal opinions to UN.
Evidence of IL as a System of Law
1. States believe that International Law Exists
2. IL is practiced on a daily basis in Foreign Offices around the
world.
3. International Organizations such as the UN, WTO, IAEA,
etc. exist and function due to International Law (Int’l
Agreements).
4. IL is discussed and applied in National Courts:
1. Reko Diq – Bilateral Investment Treaties, International Arbitration
(ICSID, etc.)
2. Dr. Aafia Siddiqui: Transfer of Sentenced Persons Treaties
3. PHC Judgment on Drones
4. Extradition Case: Tauqir Sadiq – OGRA Scam
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Introduction to International Law- IR-503 (Lecture - I)
Effectiveness of IL
• International law is overwhelmingly obeyed by most States
most of the time. The reason for its seeming ineffectiveness is
that the incidents of failure are headline news and are brought to
our attention – Genocide of Kurds, Kashmir Issue, Rwanda,
Bosnia, Iraq Invasion, etc.

• Hence, IL is so important that any violation on part of the State

is immediately noticed publicly.

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Introduction to International Law- IR-503 (Lecture - I)
Definition of International Law:

• “A combination of treaties and customs which regulates the

conduct of states amongst themselves, and persons who trade or
have legal relationships which involve the jurisdiction of more
than one state”-Duhaime's Law Dictionary
Two Main Types of International Law
Public International Law
• Regulates relationship
between states
(Law of the Sea, Laws of War,
International Humanitarian
Law, etc.)
Private International Law
• Regulates relationship
between private persons of
two different states
(International Contract on
Sales of Goods, Inter-country
adoption, etc.)
Also known as ‘Conflict of
Laws’
Public IL vs. Private IL
• Example 1: A, a Pakistani rice exporter, contracts to
deliver 10,000 bags of rice to, B, an American
importer in Florida, United States. A, hands the goods
to a cargo service to deliver the rice to B. On the way
there is a major storm which delays the shipment and
spoils the rice. B, refuses to pay for the rice. Under
American contract law the contract is complete upon
delivery. Under Pakistani contract law, the contract is
complete upon shipping.

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Introduction to International Law- IR-503 (Lecture - I)
Public IL v.s Private IL
• So A, decides to sue B for non-payment in the
Islamabad High Court. The Islamabad High Court will
apply, ‘private international law’ principles to
determine:
• Whether it has jurisdictions to hear the case or whether
the case should be heard by an American court.
• If it has jurisdiction, then should it apply U.S. or
Pakistani Contract Law.

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Introduction to International Law- IR-503 (Lecture - I)
Significance/Role of IL
Two major roles:

1. It facilitates the functioning of the International

Community. Rules of International Law cover almost
every facet of inter-state and international activity.

2. It controls States by regulating their conduct with other

States (e.g. Use of Force) and with individuals (i.e.
their own citizens – human rights law – or the citizens
of another country e.g. extradition).

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Introduction to International Law- IR-503 (Lecture - I)
Significance/Role of IL
I – Facilitating the functioning of the International Community:

International law pervades most aspects of our lives:

• International Civil Aviation Organization.

Regulates Flying, Tickets, etc.

World Custom Organization. ( Import & Export of goods)

• Developing and maintaining international Customs instruments such
as the Harmonized System, the Revised Kyoto Convention, the
Istanbul Convention, the Nairobi Convention, the Time Release
Study, etc. Securing and facilitating the movement of goods in the
international trade supply chain

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Introduction to International Law- IR-503 (Lecture - I)
Significance/Role of IL
• Use the same software on computers everywhere is
possible because the WIPO Copyright Treaty of
1996 provides rights of distribution and copyright to
the authors of software.
• Flying shorter, more direct routes to international
destinations without permission:
• International Air Services Transit Agreement
• Chicago Convention of International Civil Aviation
• Bilateral Conventions
• Standardization of Rail Networks:
• 1886 Convention on Technical Uniformity

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Introduction to International Law- IR-503 (Lecture - I)
Significance/Role of IL
• Having access to your country’s embassy or consulate
if arrested abroad:
• Vienna Convention on Consular Relations 1963
• Enforcing Arbitral Awards without a local court having
to rehear the case:
• UN Convention on the Recognition and Enforcement of
Foreign Arbitral Awards, 1958

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Introduction to International Law- IR-503 (Lecture - I)
Some More Examples to Persuade You

• Always knowing what time and date it is, anywhere on the

planet – universal recognition of the prime meridian and the
Greenwich Mean Time via the International Meridian
Conference, 1884

• Placing and receiving telephone calls worldwide possible by

creating international communications network that is regulated
by the International Telecommunications Union and also the
UN Space Treaty 1967.
Significance/Role of IL
II - Controlling the Conduct of States:
IL may also control states by inhibiting or directing their
conduct both in their relations with other states (prohibiting
the use of force) and in relation to individuals; both
individuals of other states (issues concerning exercising
criminal jurisdiction) and its own nationals (human rights
laws).
• Examples:
• Art. 2(4) UN Charter: Prohibition on the use of armed force
between States.
• International Environmental Law
• Good Governance:
• UN Convention Against Corruption
• Narcotics Control, etc.
• International Human Rights Treaties: UDHR, ICCPR, ICESCR,
CEDAW, CRC, etc.

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Introduction to International Law- IR-503 (Lecture - I)
Significance/Role of IL
Generalized System of Preferences
(GSP)
Practical Example: The EU granting Pakistan
GSP+ status – preferential (exemption) custom
tariffs for Pakistan exports to EU conditional on
Pakistan implementing 27 Conventions relating
to HR, Environment, Good Governance,
Labour, etc. Compliance is to be monitored.

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Introduction to International Law- IR-503 (Lecture - I)
Relationship between International Law &
International Politics
International Politics is powerful- has its own goals, targets, strategic
requirements, but it is dependent on International Law to achieve its
objectives. How?

Examples: Russia and warm-water theory;

1. Soviet-Afghan War (1979-1989)- Russian Intervention in Afghanistan.

i. Law of Intervention: You can not intervene unless; a) Humanitarian in

nature; b) Danger to your own national(s) (Operation Entebbe in
Uganda); c) Invitation by the government/state where you want to
intervene.

i. Afghan government wrote a letter to Russia for their intervention.

i. Legal relationship was structured to achieve the objective!

Relationship between International Law &
International Politics
2.Example: Indian Intervention in AJ&K/Bangladesh

• Political policies are implemented and executed through International

law

• International law adds value to state’s strategic goals

• Foreign policy objectives can be channeled through International law.

Example: Tripartite Agreement (Article 14, 15 and 16)

• Hence, everything becomes less relevant after it is legally formulated!

Role of IL in International Relations
• International Law can be considered the
language of International Politics.
• Its understanding and correct application
ensures the promotion of a State’s foreign
policy objectives and strategic goals.

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Role of IL in International Relations
Example: The Use of Drones in Pakistan
Two fundamental International Law Questions arise:
1. Targeted Killing: Potentially justifiable in times of war
which is regulated by the international law on armed
conflict (IHL).
• Outside armed conflict, they are illegal since
International Human Rights Law applies. This requires
you to try to capture a person and put them on trial (a
law enforcement paradigm). Killing is only a last resort
and must be justified on cogent grounds of necessity.

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Introduction to International Law- IR-503 (Lecture - I)
Role of IL in International Relations

2. Sovereignty of Pakistan: Potentially violates the

sovereignty of Pakistan and violates Art. 2(4) of the UN
Charter (Prohibition on the Use of Force)

• Primary exception the ‘inherent right of self-defence’ under

Art. 51 of the UN Charter. (Also Security Council
authorization allows a State to use military force).

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Role of IL in International Relations
Now let us examine the U.S. Position:

“There is a global armed conflict with Al-Qaeda and

its associates with the US acting in Self-Defence in
territories where the host State is unwilling or unable
to stop these elements from attacking the United
States.”

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Introduction to International Law- IR-503 (Lecture - I)
 Role of IL in International Relations
If we analyze this statement, two things are apparent:
1. Use of the words ‘armed conflict’ means that the US
thinks the law of war (IHL) is applicable to its drone
program and not International Human Rights Law.
Hence targeted killings have become easier to justify.
2. Reliance on the concepts of self-defence and
unwilling/unable attempts to circumvent the
constraints on the use of force established by Art.
2(4) and Pakistan’s Sovereignty Claims.

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Introduction to International Law- IR-503 (Lecture - I)
 Role of IL in International Relations
Importantly:

I. The U.S. does not argue that IL does not apply to it

despite being a Superpower.

I. It is rather justifying its actions through International

Law

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Introduction to International Law- IR-503 (Lecture - I)
 Role of IL in International Relations
How would Pakistan counter these arguments?
• Ensure the conservative definition of an armed conflict.
• Ensure that International Human Rights Law is applied.
• Stress on the sanctity of Sovereignty and that it cannot be
flouted.
• Speak of the need for Security Council authorization to use
force.
• Say that self-defence arguments are weak and cannot be used in
the context stated by the United States.

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Introduction to International Law- IR-503 (Lecture - I)
International Law at Global Level
• Continuous process… Legislations/Laws are still being made.

• Example:

1. World Trade Organisaton (WTO): (Pak has ratified it)

i. An organization for trade opening.

i. Forum for governments to negotiate trade agreements.

i. Place for them to settle trade disputes.

i. System of trade rules.

i. Essentially, the WTO is a place where member governments try to sort

out the trade problems they face with each other.
International Law at Global Level
• Multilateral Treaties Deposited with the Secretary-General.
i. Charter of the United Nations, San Francisco 26 June 1945
ii. Privileges and Immunities of Diplomats
iii. Convention on Prevention and Punishment of Crime of Genocide
iv. International Convention on Elimination of all forms of Racial Discrimination.
v. International Covenant on Civil and Political Rights (ICCPR)
vi. Convention relating to Refugees, Geneva 28 July 1951 (Afghan refugees)
vii. Convention relating to Stateless persons, New York, 28 September 1954 (Asylum seekers)
viii. Prohibition of Trafficking
ix. Prohibition of publication of obscene Materials
x. World Health Organization
xi. Convention on Transit, Trade of Landlocked States (More than 14 such states)
xii. United Nations Convention on Independent Guarantees and Stand-by Letters of Credit (related to
banks)
xiii. Custom Convention on Containers (regulates movement of containers)
xiv. Contract of Carriage (local language: Bilti )

• United Nations Treaty Collection Database, Available at:

https://treaties.un.org/pages/UNTSOnline.aspx?id=1
International Law at Global Level
• Treaties have created organizations; UNSC etc.,

• These organisations make resolutions.

• Resolutions have attained the status of International law. They

regulate certain areas.

For example: UNSC resolution 1373, 2001 (relating to

terrorism)
International Law in Pakistan
• Pakistan is a Dualist State

• Examples of Pakistani statutes that are made for the

implementation of International treaties.
International Treaty/Convention Pakistani Act (In compliance of
Int’l regime)

 WARSAW Convention Carriage of Goods by Air Act

 The Law of the Sea Territorial Waters and Maritime

(UNCLOS) Zone Act 1986
 Relevance for Pakistan
Pakistan is a party to thousands of multilateral and
bilateral treaties. Estimated to have over 10,000
treaty based commitments.

For 8000 Federal Statutes For 10,000 treaty based

there are approximately commitments there are 2
1,50,000 lawyers lawyers at the Ministry of
Foreign Affairs and a handful
at the Ministry of Law.

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Introduction to International Law- IR-503 (Lecture - I)
 The Weakness of International Law
• Lack of certainty: whilst being a flexible and open-ended
system, IL possess a lack of certainty with regard to
disputes between States.

• Vital interests: because IL lacks formal enforcement

mechanisms, the temptation and opportunity to violate the
law is greater than in other systems. IL is weaker than
national laws in this manner. When a state believes its
vital interests are threatened, it is not certain that IL will be
able to prevent illegal conduct.
Summary
• I hope I have been able to drive home the point that International law is;

• a significant discipline,

• an area which a has a global reach,

• an area which is extremely important for Pakistan, and

• Its understanding by Pakistanis and in Pakistan will be a great importance to us.

• Otherwise, we will not be able to safeguard our national, political and strategic
interests at global level.
 THANK YOU

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