The context and nature of international law
Law: A set of rules that regulate the state.
Public international law regulates the relationships between states and actors of the legal
system and not individuals, such as contract law and the rest. Who are the subjects of
international law? Domestic law is law because of the existence of certain institutions, so
when we come to the international system, there are similar institutions in place that
make international law. The legislative of the UN is the General Assembly, and the
executive of the UN might be the Security Council, but the problem is that their decision
is affected by the veto powers of the permanent members.
The function of the Security Council is to promote and maintain peace. So, theoretically,
the Security Council comes close to being the executive branch, but it is under constraints.
The judiciary organ of the UN Is the International Court of Justice, but does it have
competent jurisdiction?
They have power over disputes only when they are brought before them. Contrasted with
domestic law, disputes are brought before the court whether there is consent or not.
International criminal law has no jurisdiction over states except crimes against
individuals (genocides, crimes of aggression, crimes against humanity). This court came
into power by treaties.
In the international system, we have institutions that come close to institutions that are
identiMied when asking whether domestic law is law. In the global system, there is no
sovereign to give a command for a state at fault to be sanctioned: USA was not sanctioned
for going to Iraq. Some jurists have come to the conclusion that international law is not
law based on the command theory of Jeremy Bentham and Austin but rather rules of
positive morality because of the absence of sanctions.
So what business do we have sitting here learning PIL if it is not law?
What are the arguments supporting the view that international law is law? There is no
basis for comparison between these systems as the subjects of domestic law are
individuals, while the subjects of international law are sovereign states. The UN
organization is not a super state and is completely different from institutions created for
domestic law. International society is made up of states which are sovereign and equal.
Rules governing international law are made through treaties and customs and are created
by the states themselves. The essence of law is that they are obeyed. The rules created by
the states, are they being obeyed? If not then they do not fall into the category of being a
law. A major proposition is that the rules are habitually obeyed. Crimes are being
committed every day, but this does not mean that rules do not exist in the society;
domestic law.
Henkin; how nations behave-state behavior shows that states habitually obey the rules
Pacta sunt servanda-agreements must be kept.
Pacta tertis nec nocent nec prosunt-agreements are not binding on third parties unless
they give their agreement.
Iraq was going to Kuwait and was a volition of the UN rules as they were going with force.
The states use the law to defend themselves. Iraq said that its use of force was within its
domestic affairs as Kuwait was part of its province. However, the argument did not hold
because Kuwait was recognized as independent. In the charter, a state can use force in
self-defense and consequent upon a decision of the security council. The problem with
international law is that when states take action, they hardly have judicial interventions.
However, we should not undermine the role of power in the international system. This is
due to the fact that some states are more potent than others and may, therefore, get
away with certain actions. Rules are obeyed because of reciprocity, consent, or consensus.
History of International Law
There is no comprehensive history of IL. It is traced to the treaty of 1648 because that is
when the sovereignty of states came into play. Before that treaty, there was no statehood.
This is the Treaty of Westphalia. From that point of view, IL has evolved over the years.
After the Mirst world war was the Mirst time, we established IL organizations through the
League of Nations. One may even criticize the point of view that IL started then, but it is a
rather Eurocentric viewpoint. That is, they did not consider what was happening in other
places. They believe that it goes back to the early civilization period. For example, some
people believe that Africa had no history till the coming of the Europeans. We need not
hold on to the idea that IL began in Europe.
When trying to read about IL, we always encounter one name known as the founder, Hugo
Grotius (1583-1645). It is believed that IL began with this man. He published a book, 'de
jure belli ac pacis libri tres,' on the laws of war and peace at the time. He lived through the
changes that were taking place in Europe and put it in a book. Chapter ten of the book was
titled ‘Freedom of the Seas,' often quoted when two parties were in dispute. From that
period, there have always been others: Suarez, Paffendorf, and Vattel. The rules here
applied to the civilized nations in Europe. However, some people take the view that this
is not true because other nations existed apart from Europe, and therefore, that title
should be conferred on Franciscus de Victoria, who lived a century earlier. In the early
days, the Europeans felt they were civilized and, therefore, always
justiMied their actions with the excuse that other nations were not civilized. It was
Franciscus who made the realization that the other states were still states regardless and
had rights and duties. In this case, he extended the bounds of IL while Hugo conMined it to
Europe. Today, IL has expanded. It is not limited to states but also persons. He never
published a book in his days, but after he died, his students collected his lecture notes and
published 'de indis et de jure belli reMlections' -Indians and the ReMlection of the Rights of
War.
Sources of International Law- Customary Law
If International law is law, then it must have sources. The sources of Ghanaian law are
found in Article 11 of the 1992 constitution. The sources of IL are customs and treaties.
The UN charter comes close to being a world constitution. It is the statute of the ICJ where
the sources of IL can be found. International conventions are the same as treaties. These
are all methods of law creation. From this, we can ask whether there's a hierarchy as well
as whether there are other sources of IL that are not contained in Article 38.
International conventions are akin to contracts. A treaty is an international agreement
concluded between states in written form and governed by international law, including
the Vienna Convention on the Law of Treaties. Treaties are binding by pact sunset servant.
Basically, all subject matters on an international front are governed by treaties.
Article 38
1. The Court, whose function is to decide in accordance with international law such
disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules
expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the
most highly qualiMied publicists of the various nations, as subsidiary means for the
determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et
bono if the parties agree thereto.
The next source is international customs. There are two important elements:
Material facts and psychological facts (opinio juris ac sive necessitatis).
Is that custom repetitive or concordant? Is it uniform? The practice must have been done
for a considerable period. The acceptance of a general practice as law (opinio juris).
There must be a feeling of compulsion.
Fisheries Jurisdiction Case (Jurisdiction) (United Kingdom v. Iceland) (1973 I.C.J.) [P113]
A fundamental change in the circumstances which determined the parties to accept a
treaty, if it has resulted in a radical transformation of the extent of the obligations imposed
by it, may, under certain conditions, afford that party affected a ground for invoking the
termination or suspension of the treaty.
North Sea Continental Shelf Cases: Federal Republic of Germany v. Denmark and v.
Netherlands (1969, I.C.J.) [118]
Military Activities In and Against Nicaragua; Nicaragua v. U.S., (1986, I.C.J.) [130 N3]
Asylum Case: Columbia v. Peru (I.C.J. 1950) [132]- you can also have regional custom
The Steamship Lotus: France v. Turkey (1927, P.C.I.J.) [426] PIL Page 3
The Steamship Lotus: France v. Turkey (1927, P.C.I.J.) [426]
The third element, general principles of law, recognized nations. Desuetude-civilized is
no longer in use as membership of the UN is open to all peace-loving nations by article
four of the charter. Instead, the recognized nations are replaced with the legal systems
and traditions of the world. There are no general principles. There can be no gap in the
law- comili on liquet. Where there is a gap, the judge has to Mill the gap, which is common
to all legal systems. This is known as the general principles. An example is the two parts
of natural justice. Even with this, it is common to common law legal systems.
To settle the dispute, the judge might look to these general principles. These principles
are not general principles of IL but of law, as they are common in all legal systems. This
makes it hard to identify the general principles.
Treaties signed by other states do not bind states. Protests have a role in the formation of
international law. If there is a dispute, you must show that the other state agreed to be
bound by a certain custom. Would the rules of customary law bind a state if it remained
silent during the formation process? The state must show that it protested in order not to
be bound by it. International custom is the general practice of states but it does not mean
all states are bound by it. The states that protested would not be bound.
You can have local customs between two states if they both practice the same custom
rights of passage case.
The fourth element is judicial decisions and writings of the most highly qualiMied
publicists of the various nations, Art 59 of the statute. Decisions are bound by the parties
involved and not other countries. When people have disputes, although the constitution
is referred to, publicists or experts in a particular Mield are also quoted because they
explain certain principles. These publicists do not make IL; the states themselves make it.
They are looked up to for subsidiary purposes. Proof of IL is nothing but a
geographical/bibliographical problem.
Does it matter now what Grotius said...
Is there a hierarchy in the sources of law found in Article 38? Maybe there is a hierarchy
because it is in the absence of treaties that the judges would go searching for customs and
general principles. Whether Article 38 is exhaustive of all the sources of public IL. There
are other sources, such as jus cogens and soft law. There are other sources not
mentioned in Article 38. They are acts, decisions, and resolutions of organs on
international institutions. The organs here are the General Assembly and the Security
Council.
There are also draft articles of the International Law Commission. The third and fourth
ones are the jus cogens and soft law sources, including guidelines, codes of conduct,
declarations.. etc. The decisions of the Security Council are binding on all states, whether
they are members or not. In this sense, the Security Council decisions are said to be a
source of IL. The general assembly passes hortatory resolutions in that they are not
formally binding; they are morally persuasive. Some have argued that general assembly
resolutions can be a source of IL. There are some Taslin Elias who said they could be
binding because the general assembly is like parliament when the states go and vote on
the resolution, then the states are said to be bound by it. This is even so for states that
voted against it. The only Mlaw is that the general assembly is not like a parliament. A
variant is that such a resolution can be binding if the resolution was voted by a large
number of states and not just by a simple majority. Some also say that it is not the
resolution per se that makes it binding, but if the practice of states follow the resolution
passed, it gradually becomes a custom, then it might become binding.
Draft articles of international law commission-group of publicists and lawyers of great
repute who research and draft articles that may become treaties. These articles are not
yet treaties because they exist only in draft. Some say they are not because they are not
binding because they have not become treaties yet. But again, they are because Article 38
says the publicists are sources of law.
Take jus cogens very seriously. It is deMined by Article 53 as the peremptory norm of
general IL recognized and accepted by the international community of states as a whole.
This does not permit derogation and can only be amended by a new peremptory
international law. It is akin to international public policy. A treaty is void if it does not
conform with jus cogens at the time of its conclusion. Jus cogen is superior to treaties and
customs. Every member of the international community must accept the norm. today,
examples include genocide, terrorism, slave trade, war crimes, money laundering, and
piracy against the law of nations (piracy jure gentium)...every state must recognize and
accept jus cogens. Some people do not believe in the existence of jus cogens because they
should be a commonality and accepted by all states.
Unilateral declarations are sources of law
Soft laws are not formally binding on the states; they are merely morally persuasive. They
are guidelines, codes of conduct, and memorandums. The states may act on these laws if
they wish, and tribunals may refer to them.
Wimbledon-kiel canal. Germany had signed the Treaty of Versailles, which demanded that
it should allow any vessel which is not at war with it to pass. During a war between Poland
and Russia, of which Germany was neutral, it did not allow the SS Wimbledon to pass, and
substantive loss resulted. The matter was taken to the ICJ, where Britain and France
argued that Germany was bound by the treaty. Germany asserted that a treaty could not
be followed if it was contrary to customary international law (its sovereignty). It was held
that its sovereignty was recognized and that it was under this sovereignty that allowed it
to enter into a treaty with other countries and that allowing the vessel to pass did not
affect its sovereignty or its status as neutral. In this case, a treaty was superior to
customary international law.
Western Sahara- since independence, Morocco has considered the Spanish Sahara to be
part of its pre-colonial territory. Morocco fought for independence and succeeded in
including the Spanish Sahara as one of the territories to be decolonized. The UN GA called
a resolution 2229 for Spain to hold a referendum on self-determination. Morocco declared
it could not accept a referendum that would include an option for independence. In
announcing the matter to the ICJ, Spain agreed to delay the referendum. The issue was
whether western Sahara, at the time of colonization by Spain, was a territory belonging
to no one, and should the opinion be no, what were the legal ties between the territory
and the Kingdom of Morocco and the Mauritanian entity. Morocco claimed allegiance to a
variety of tribes in the surrounding territory. Algeria argued that Sahrawis were a distinct
people and did not fall under the subjection of either Morocco or Mauritania. At the time
of colonization, the territory was not terra nullius, and there were legal ties between the
territory and the kingdom of Morocco. There were also legal ties between the territory
and the Mauritanian entity. However, neither legal tie implied sovereignty or rightful
ownership over the territory.
Reparations case- to determine whether the UN has the capacity, there was a need to look
at the charter, and the charter did not expressly state that there was a need to consider
what characteristics it had intended to give to the organization. In Article 1 para 3, it has
equipped itself with organs and has given special tasks. Also, Article 2 para 5, it had
required members to accept and carry out any decision of the SC and give legal capacity
and privileges and immunities in the territory of each of its members.
The organization was intended to exercise and enjoy functions, rights, and a capacity to
operate on an international plane. It would not be able to carry out its intentions if it was
devoid of international personality. This is not to say that it’s a state or that its legal
personality and rights and duties are the same as those of a state.
Relationship between international law and municipal
law
There has been a hectic debate between scholars as to the relationship between
international law and municipal law. International law is the law that is external to the
states, whereas municipal or domestic law is internal. International law is a set of rules
that governs the relationship between the states. Municipal law governs the relationship
between individuals in a state. So, is there a relationship between international law and
municipal law? Some, like Fitzmorris, believe that there is no basis for comparison
between the two as the two are distinct. This has led to two standpoints: dualism and
monism. Dualism posits that international law and municipal law are two separate
systems of law and that international law can never be part of municipal law unless and
until such a time when it is incorporated into municipal law. Monist schools take a
contrary decision that international law, once concluded by states, is automatically
incorporated into municipal law. They believe that they are a unitary system of law. People
like Hersh Lauterpacht concluded that when international law conMlicts with municipal
law, international law reigns supreme. The debate is beside the point as it is a practice
that matters the most in the sense that should there be an issue as to the place, for
example, if a tribunal has to look at the law...what position is international law in a place?
International law would only look at municipal law to see if it amounts to a custom of the
state, thereby amounting to international law. An international law tribunal would not
enforce municipal law by way of Article 27(Vienna Convention). A municipal tribunal
would also not enforce an international law if it is not incorporated into its municipal law.
Article 75 (2) of the constitution,1992, makes Ghana a dualist state.
A treaty, agreement, or convention executed by or under the authority of the President
shall be subject to ratiMication by
(a) Act of Parliament; or
(b) a resolution of Parliament supported by the votes of more than half of all the
members of Parliament.
The rationale is to put a check on the executive so that he cannot sign anything he wants
in which the country would be bound. Parliament needs to examine it Mirst before it
becomes part of our laws.
Before a municipal court, what view of international law will it take? for example, in
Ghana, it would only take the international view if it is incorporated into municipal law.
Armon v Katz.
Article 27(Vienna Convention)- a country cannot rely on its domestic law to act in a way
that is contrary to international law. A party may not invoke the provisions of its internal
law as justiMication for its failure to perform a treaty. This rule is without prejudice to
Article 46
Tsatsu v Republic, ara libertad dispute; Ghana v Argentina- seizure was against both
domestic and international law.
The sources of international law and their applicability to the republic of Ghana, Ghana
at 50- NPP v IGP- Justice Archer at that time Ghana has signed but not ratiMied a treaty
concerning human rights. Would unratiMied treaties be enforced by our courts? Justice
Archer appeared to be saying that it would, and this is supported by Atua in his article in
Ghana @ 50. There is an obligation, but it is only on an international level. President
Clinton signed a treaty that was later nulliMied by an act of parliament when President
Bush came to power.
NPP v IGP
Ghana is a signatory to this African charter, and member states of the Organisation of
African Unity and parties to the charter are expected to recognize the rights, duties, and
freedoms enshrined in the charter and to undertake to adopt legislative or other
measures to give effect to the rights and duties. I do not think that the fact that Ghana
has not passed speciMic legislation to give effect to the charter means the charter cannot
be relied upon. On the contrary, Article 21 of our Constitution, 1992, has recognized the
right of assembly mentioned in Article 71 of the African Charter.
Civil law countries mostly share the monist ideology. All these conMlicts relate to treaties.
What would be the position of the courts of Ghana regarding international custom? In
other words, would municipal law enforce international customs? In Britain, they apply
international customs as part of common law. The courts of Ghana would apply
international customs as it is part of common law. Therefore, international customary law
through common law adoption. Whose responsibility is it to make sure parliament ratiMies
a treaty that has been signed by the president?
International tribunals do not apply municipal law-Article 27. municipal law can only be
used as evidenced by the practice of states.
Subjects of International Law/ International Legal
Personality
Individuals and artiMicial persons in the form of companies are subjects of domestic law.
What is the concept of international legal personality? What is the concept as it relates to
statute? As it relates to international organizations, what is the position of the individual
in international law?
The concept of international legal personality is one that acknowledges that within any
legal system, there are those who may claim rights and may be subject to duties and
obligations. There are those who may make claims and those who may make
counterclaims. In domestic law, it is the individual who is the legal person of the system.
Individuals as natural persons or artiMicial persons. The same applies to international law.
Who is the typical subject? The states? States are the basic facts and assumptions of the
IL. Interestingly, IL has no deMinition of a state. What we have is a description of what a
state would be.
What is a state for the purposes of IL?
Montevideo Convention on Rights and Duties of States (1933) [12]-
Article 1 provides: "The state as a person of international law should possess the
following qualiMications:
1. (a) a permanent population;
2. (b) a deMined territory;
3. (c) government; and
4. (d) capacity to enter into relations with other states."(ability to enter into
international relations).do
Statehood is a more complex subject. The modern inquiry sticks to other criteria which
are not stated in the description given by the convention. There may be differences in the
boundaries of states. There is a general notion that states have a deMined boundary. Size
does not matter as far as statehood is concerned. There is no determinate population of a
country. There is usually a general idea of the population. Sometimes, there is a
breakdown in the government of countries. The criteria given by the convention are not
adequate in the sense that there are some criteria that were not mentioned. Ghana
became independent through an act of parliament. Some countries declared
independence unilaterally (Southern Rhodesia). On the face of it, they had fulMilled the
four criteria, but they were not admitted into statehood. Today, other criteria have been
added, and they include self-determination, human rights/illegality, democratic
governance/ROL, and use of force.
Southern Rhodesia lacked the principle of self-determination. This is one of the cardinal
principles that an entity needs to have before it can be admitted into statehood. Self-
determination belongs to the people. IL recognizes that it is only colonial people who have
the right to self-determination. This stops the moment independent status is achieved.
There is a need to draw a distinction between external self-determination and internal
self-determination. The coming up of certain schemes to satisfy those who are
disadvantaged and prevent secession is known as internal self-determination. Today, it
does not operate as a right beyond the colonial situation.
Human rights, particularly in the context of former Yugoslavia. In Harris, the European
Union would not recognize countries that deny the human rights of its citizens.
If a country uses force to acquire territory, the country would not be recognized as a state-
art
Today deMining statehood is more complex as the spotlight is on other criteria.
Are states the only subjects of international organizations? Lauctepacht said long ago that
states were the only subjects, but this could not stand the test of time. After 1945, there
are many international organizations. There are also regional organizations. There are
also sub-regionals like ECOWAS. These are not states as they don’t have the same
attributes of states. But all these have become subjects of international law. If they are not
states, then where do they derive their legal capacity from? They derive it from
constitutive instruments. The treaties and documents that bring them into existence.
These organizations can stand on their own.
Count Bernadot* of Swedish nationality, was sent to Jerusalem because of a Jight
going on. A Jewish terrorist killed him.
A person can only bring an action in his country because he is a subject of domestic law,
but when he is killed outside his country, it is his state that brings the action.
Reparations case- The starting point to Minding out whether the UN is an international
subject is the UN charter. It did not Mind anything but found implications that the UN is a
subject. The UN could send its ofMicials out, and if something should happen to them, the
UN can bring action. Second was whether it had treaty powers. Article 43 of the UN
charter can enter into special agreements with states. It means it can be able to operate
on an international legal plane.
The privileges enjoyed by the organization.
These are usually given to diplomats. UN ofMicials are given this immunity. The ICJ then
concluded that the UN is an objective legal personality.