Chapter One
The Nature & Development of International Law
Public and Private Int Law
Public International Law & Private International Law
Private Int law or Coflict of Laws: deals with cases within a
particular legal system containing a foreign element , raising
questions as to the application of foreign law or the role of
foreign courts.
Public international law (usually just termed as international
law) is not simply an adjunct of a legal order, but a separate
system altogether.
This course is about public International law/int. law]
Coined by Jeremy Bentham in 1780- before it used to be called
‘law of nations.’
Definition of International Law
Traditional and modern definitions
Traditional definition: the law that governs the relations between
sovereign states amongst each other.
Based on the assumption that states are the only subjects of int law
Not accommodating other actors
Failed to reflect the reality
Contemporary definition (beginning/ mid 2oth century development)
open ended
Acknowledges int actors other than states operate on the int plane
Intergovernmental orgnzs, individuals (UN Charter), multinational
companies etc
Defn contd…
The change in definition can be clearly seen from the change in definition
in the Restatement by the American Law Institute of the Foreign Relations
Law of the United States
The Third Restatement definition: consists of rules and principles of
general application dealing with the conduct of states and of international
organizations and with their relations Inter se, as well as with some of
their relations with persons, whether natural or juridical.
The previous version defined it only as those rules of law applicable to a
state or international organization
Expanding scope of int law, the increasing global interdependence and the
emergence of new players means states are not the only subjects
BUT, states still remain the main actors- international law is still
predominantly made and implemented by states.
Defn contd…
Why do we say states are the outstanding
actors?
Int orgs are dependent on support of states, they don’t have
territories etc
Int law rules are primarily formulated by treaties and custom which
in turn depend on consent of states
Only states can be members of the UN and most of its organs
Only states can appear before the ICJ in its contentious jurisdiction
only states can present a claim on behalf of a national who has been
injured
by another state- DIPLOMATIC PROTECTION
CONCLUSION: Int legal system is still primarily geared towards the
international community of states, represented by governments
Classification of Int. Law
Universal and Regional int. law
‘Universal int law’: refers to rules/principles binding on all states
Ex: The prohibition on the use of force
‘General international law’ - rules and principles that are applicable to
a large number of states
Ex: ICRC (reservations in treaty law) custom (persistent objector
theory)
REGIONAL: a group of states linked geographically or ideologically
may recognize special rules applying only to them,
EX: EU law, AU law, NATO law etc the practice of diplomatic asylum
that developed in Latin America.
Characteristics of Int Law
● Intl law is a horizontal/decentralized legal system.
Unlike the municipal legal system which is vertical, int legal system lacks a
supreme authority, the centralization of the use of force, and a differentiation
of the three basic functions of law-making, law determination and law
enforcement
It is based on principles of reciprocity and consensus rather than on
command, obedience and enforcement.
The GA is not a world legislator and the ICJ is not a world court, nor is the SC
a perfect law enforcer (has both legal and practical limitations)
● The role of self-help by states in cases of violations of their rights is
predominant in international law as opposed to restricted admissibility of self-
help of individuals in national legal systems.
Note, however, that self-help does not always/necessarily imply use of force
Characteristics contd…
In cases of violation of state rights self-help was the only available
remedy until recently
At one time states used to even to go to war to enforce their legal
rights.
However, this is no longer lawful, with certain exceptions such as self-
defence against armed attack
But there are legal means of self-help measures
Retorsion is a lawful act which is designed to injure a wrongdoing
state —for example, cutting off economic aid, severance of diplomatic
relations ( lawful -no legal obligation to have them in the first place).
Reprisals are acts which would normally be illegal but which are
rendered legal by a prior illegal act committed by the other state.
This is a limited & deliberate violation because another country already
violated int law
Ex: State A expropriates property belonging to state B’s nationals- B can do
likewise but the measure has to be proportional
Counter-reprisals are generally not allowed
The UN General Assembly in its 1970 Declaration on Principles of
International Law declared, "States have a duty to refrain from acts of
reprisal involving the use of force." Resolution 2625 (XXV)
Fineline between reprisals and acts of revenge
The objective is to restore equilibrium and ensuring future compliance
proportionality
Economic sanctions
Is int law a law?
Because it lacks effective sanctions during violations when compared
to municipal law, should we consider it as a law?
Comparison with municipal law is incorrect
historical, structural and functional differences between legal
systems within states and the international legal system
Most states are careful to observe most obligations of
international law most of the time, even in the absence of a
compulsory dispute settlement procedure and centralized
enforcement agency
Violations are exaggerated and compliance not reported
Countries constitutions make reference to int law
A system of law designed primarily for the external relations of states
does not work like any internal legal system of a state.
While international law is clearly weaker than municipal law from the
viewpoint of independent enforcement, it still provides the external
relevant terms of legal reference for the conduct of states in their
international relations
CONCLUSION: Int law is a law but a different kind of law from national
legal systems
Scope of Int. Law
Int law has gone through a period of change – from a system of
coordination of int intercourse of mainly European states in limited
areas, such as diplomatic relations and war, to a universal system of
cooperation in numerous fields between quite different entities;
The change is due to numerous factors:
the advance of science and technology- law of the sea, air & space
law etc
increasing global economic and political interdependence-
international trade, economics and finance, environment and
development etc
Emergence of new actors- law of int orgns etc
Scope contd…
Prof Peter Malanczuk:
International law now covers vast and complex areas of transnational
concern, including traditional topics, such as the position of states,
state succession, state responsibility, peace and security, the laws of
war, the law of treaties, the law of the sea, the law of international
watercourses, and the conduct of diplomatic relations, as well as new
topics, such as international organizations, economy and
development, nuclear energy, air law and outer space activities, the
use of the resources of the deep sea, the environment,
communications, and, last but not least, the international protection
of human rights.
Theories of Int. Law
The different theories try to provide answers to the questions:
Where does int law derive its legal validity?
What is the juridical origin or source of int. law?
Why is it law?
These questions vexed jurists for many years and a number of
theories have been developed.
Theories contd…
The Command Theory
John Austin/ Positivism
Law comprises a series of commands/orders issued by a sovereign and
backed by threat of sanctions/enforcement;
If any of these elements lacking- no positive law
Int law not positive law because it does not result from the commands
of a sovereign- customary law develops through practice and treaty
through consent
Int law also lacks the element of enforcement
THEREFORE int law is not made up of commands
Int law is positive morality
Tehories contd…
CRITICISMS
As a general description of what law is, the theory is now largely
discredited
The description does not even describe national law accurately, let
alone int. law.
Austinian theory can also be dismissed as far as it suggest int. law is
the same animal as national law is.
The command theory misinterprets the function of int law b/c its
primary purpose is not to coerce or command states but to enable
them freely TRANSACT based on orderly, predictable principles.
Austinian theory cannot explain why states obey int. law even when
there is no sovereign power that sanctions violations
Theories cont…..
The Consensual Theory
The basic tenet of the theory is that the binding quality of int law & -
ITS EXISTENCE AS LAW- emanates from consent of states
No int law may be created without the consent of states which are to
be bound by such rules.
INT LAW FLOWS FROM THE WILL OF STATES
As consent is the source of all legal obligations- NEW STATES
CANNOT BE BOUND BY PRE-EXISITNG INT LAW RULES
State consent may be given expressly/treaties or impliedly/custom
Int law is based on voluntary self-restriction
Reflects the reality to some extent: treaty -pacta sunt servanda
Custom also requires consistent state practice/persistent objection
BUT there are some practical & theoretical problems with the theory
Why would states be bound by self imposed obligations?
There are many rules that are not necessarily based on consent.
Where is the legal basis for the pacta sunt servanda/conset rule?
Practically, the new countries that emerged after 1950s should not have
been bound by pre-existing cust int law rules.
They are bound by them but they did not have the opportunity to accept or reject
them
The theory is attractive but does not accurately describe reality of int law
Consent is one method of creating binding rules rather that the reason why
they are binding
Theories contd…
Natural Law
Polar opposite to the consent theory
Positivism is based on actual practice but natural law is based on
objectively correct moral principles.
Rules of law are derived from the dictates of nature as a matter of
human reason.
Int law derives its binding force from the application of the law of
nature.
Presupposes an ideal system of law, founded on the nature of man as
a reasonable being.
CRITICISM
Natural law has little support in int law b/c law creation in int
law heavily depends on state consent.
Int law rules are derived from what states actually do and not
from what the law of nature supposes them to do.
it is difficult to find common universal moral or ideological threads
tying all states together.
However, natural law ppls sufficiently describe concepts such as
equity, justice and reasonableness.
Jus cogens
Other theories
Ubi Societas , ubi jus/ practical necessity
Law is necessary for any society to function and because it is
necessary, it is binding ex hyphotesi
The juridical origin of int law lies in practical necessity
Pragmatic but complicated theory
It is tautologous – int law is binding b/c it has to binding
Variations on a theme
Relate to the structure of int law or on a theme
DECONSTRUCTIONIST THEORIES: INT LAW HAS NO
LEGAL OBJECTIVITY
It is not a law b/c it can be used to justify int behavior in a wanted
way
It is a conjunction of politics, morality and self-interest
Realsit theories: real importance of int law lies not in the
validity of its claim to be law but on the impact it makes.
It is enough to justify the existence of int law –the fact it is accepted
and it functions is enough
Third World Approaches to International Law (TWAIL) is a critical
approach to international law that is not a "method" in the strict
sense of questioning "what the law is". Rather, it is an approach to
law that is unified by a particular set of concerns and analytical tools
with which to explore them. It is an approach that draws primarily
from the history of the encounter between international law and
colonized peoples. TWAIL shares many concepts with post-colonial
studies, feminist theory, Critical legal studies, Marxist theory and
critical race theory.
History of Intl Law
Ancient History
the development of the concepts and practises that underpin the modern
system can be traced back to ancient historical politics and relationships
thousands of years old
Basic concepts of international law such as treaties can be traced back
thousands of years
Focused mainly on laws of war and diplomatic relations
Ancient Greeks and Romans (jus gentium)
Early Islamic law's principles concerning military conduct and the treatment
of prisoners of war under the early Caliphate are considered precursors to
international humanitarian law.
Coined by Jeremy Bentham in 1780- before it used to be called ‘law of
nations.’
MODERN INTERNATIONAL LAW
Origins of modern system of international law can be traced back to 400 years
Contemporary int law has its roots in 16 th and 17th centuries and its development
coincided with the rise of nation states in Europe.
It emerged in Europe in the period after the Peace of Westphalia (1648), which
concluded the Thirty Years War.
Europe renaissance –sovereignty- nation states
Development of international law mirrors the extent to which states came in to contact
with each other.
Modern international law developed out of Renaissance Europe and is strongly entwined
with the development of western political organisation at that time.
The development of European notions of sovereignty and nation states would
necessitate the development of methods for interstate relations and standards of
behaviour, and these would lay the foundations of what would become international law
The most important of these was Hugo Grotius, whose treatise
De Jure Belli Ac Pacis Libri Tres is considered the starting point for
modern international law
Law was not imposed from above, but rather derived from principles.
Foundation principles included the axioms that promises must be
kept, and that harming another requires restitution
the ‘classical’ system of international law (1648–1918)
and the development of ‘modern’ or ‘new’ international law since the
First
World War.
The classical system was based on the recognition of the modern
sovereign state as the only subject of international law. This system
was
composed of numerous sovereign states considered as legally equal
and who
accepted the unlimited right to wage war to enforce claims and
protect national interests.
it reflected the interaction among European powers and
the imposition of their international legal order upon the rest of the
world in
the three centuries following the Peace of Westphalia
The development of modern international law can conveniently be
described
in the stages from the First World War to the Second World War,
including
the split of the international community in the wake of the Russian
Revolution
and the creation of the League of Nations, from the establishment of
the
United Nations to decolonization (1945–60), and from the further
expansion
of the international community to the end of the Cold War marked by
the
dissolution of the Soviet empire (1960–89).
Age of discovery- need for laws regulating title over territory
Use of the high seas
Hugo Grotious –father of international law
Treaty of Westphalia
Francisco de Vitoria and Francisco Suárez
Pre war and Post war era
Use of force
Different phases
the international legal orders of the Spanish age (1494– 1648), the
French age (1648–1815) and of the English age (1815–1919)