The International Legal Order
Chapter Two
Syllabus topic 1, "Environmental Federalism and International Order"
Pages 5 to 7 of 663
In one line
The international legal order is the system of rules that States have made to govern their relations with each other, and it has one feature that explains every difficulty in this paper: there is nobody above the States.
In exam wording: the international legal order is a horizontal, decentralised legal system whose primary subjects are sovereign States, in which law is made by consent rather than by command, and in which the same States are the legislators, the subjects and, in most cases, the enforcers.
Why the law has this shape at all
In India, if Parliament passes an Act, it binds you whether you agree with it or not. That is a vertical legal system: a lawmaker above, subjects below.
International law has no lawmaker above. States are sovereign, which means legally equal and subject to no higher authority. So a rule can only become binding on a State by that State's consent, expressed in a treaty it joins or in a practice it follows out of a sense of legal obligation. That is a horizontal system.
Everything students find frustrating about international environmental law follows from this. There is no world environment ministry. There is no compulsory court. A State that refuses to join the Basel Convention is not bound by it, and no amount of moral pressure changes that legal fact.
The Charter's own words
Article 2, paragraph 1 of the Charter of the United Nations 1945 states the foundation: the Organization is based on the principle of the sovereign equality of all its Members.
Article 2, paragraph 7 states the limit that this paper keeps running into: nothing in the Charter authorises the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State.
Article 1 sets out the Purposes, and paragraph 3 is the one that matters here: to achieve international cooperation in solving international problems of an economic, social, cultural or humanitarian character. Environmental protection was not named in 1945 because nobody was thinking about it, and the whole of Module I's third topic is the story of how it got in.
Broken down
The order has four working parts, and each has a chapter of its own later in this module.
- Subjects. Who has rights and duties. States primarily; international organisations to a limited extent; individuals and companies almost not at all, which is exactly the difficulty in MU's topic 7 about multinational corporations.
- Sources. Where a rule comes from. Treaty, custom, general principles, and the subsidiary means listed in Article 38 of the Statute of the International Court of Justice.
- Institutions. The General Assembly, the Economic and Social Council, the United Nations Environment Programme, and the conference of the parties to each treaty.
- Remedies. State responsibility, and dispute settlement before a court or an arbitral tribunal.
The International Legal Order
Worked example
Meera is a fisherwoman in Ratnagiri. A cargo ship registered in Panama, owned by a Greek company and chartered by a Singapore trader, discharges oily waste twenty nautical miles off the Maharashtra coast. Her catch collapses.
Ask the four questions above and you will see the order at work.
- Subjects. Meera has no standing anywhere in international law. Panama, as the flag State, and India, as the coastal State, do.
- Sources. The rule against the discharge comes from MARPOL 1973, a treaty both Panama and India have joined, and from Part XII of the Law of the Sea Convention 1982.
- Institutions. No institution can act on Meera's behalf. India's own authorities must.
- Remedies. India may prosecute the ship under its own law when the ship enters an Indian port, and may raise the matter with Panama. Meera's own remedy, if she has one, is in an Indian court.
That is the horizontal system in one paragraph, and it is why every chapter in Module I about federalism matters so much: the international rule is real, but it becomes useful to Meera only when Indian law picks it up.
What it does NOT mean
It does not mean international law is not law. States comply with it most of the time, for the same reason people keep contracts: they want others to keep theirs. Non-compliance is visible and costly.
It does not mean there is no enforcement. There is, but it is decentralised: countermeasures, treaty suspension, trade restrictions, and the reputational cost of being found in breach.
It does not mean States are equal in fact. They are equal in law. Half of Module I's second and third topics are about what that difference produces.
Limits and criticism
The consent basis is the standing criticism of the whole subject. A rule that binds only those who agree to it is weakest exactly where it is needed most: against the State that refuses to agree. The Ban Amendment to the Basel Convention, adopted in 1995 and in force only since 2019, is the sharpest example in this book, and India is not a party to it.
Quick revision
- International law is horizontal and consent-based; there is no legislature above the States.
- Sovereign equality is Article 2, paragraph 1 of the Charter; the domestic jurisdiction limit is Article 2, paragraph 7.
- Article 1 sets the Purposes, including international cooperation on economic and social problems.
- Four working parts: subjects, sources, institutions, remedies.
- A State not party to a treaty is not bound by it, however much the world wants it to be.
The International Legal Order
Test yourself
1. What does sovereign equality mean, and which article states it? That every State is legally equal to every other and subject to no higher authority. Article 2, paragraph 1 of the Charter of the United Nations 1945.
2. Give one consequence of the horizontal structure for environmental protection. A State that stays outside a convention is not bound by it. The Basel Ban Amendment binds only those who have accepted it.
3. Why can a fisherwoman harmed by a foreign ship not sue in international law? Because individuals are not, in general, subjects of international law. Her State can act; she cannot, unless a domestic court gives her a remedy.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.