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PUBLIC PUBLIC
INTERNATIONAL LAW I INTERNATIONAL LAW I
LAW 3910 LAW 3910
PROFESSOR PROFESSOR
DR. ABDUL GHAFUR DR. ABDUL GHAFUR
HAMID HAMID
CHAPTER 1 CHAPTER 1
NATURE OF INTERNATIONAL
LAW
1.1 NATURE OF INTERNATIONAL 1.1 NATURE OF INTERNATIONAL
LAW LAW
What is International Law?
[Textbook, pp. 1-2 ]
The term international law first
introduced by Jeremy Bentham.
Alternative names:
- law of nations
- law among nations
- Inter-state law
Traditional definition: International law is the law
that governs States in their relations with one
another.
It does not reflect reality in modern times. New
actors have emerged on the international plane:
- Public international organizations (IGOs),
- non-governmental organizations (NGOs),
- transnational corporations (TNCs),
- private individuals.
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Oppenheim Oppenheim s s Definition Definition
International law is the body of rules which are
legally binding on States in their intercourse with
each other.
These rules are primarily those which govern the
relations of States, but States are not the only
subjects of international law.
International organizations and, to some extent,
also individuals may be subjects of rights
conferred and duties imposed by international
law.
Von Von Glahn Glahn [Law Among Nations] [Law Among Nations]
Von Glahn defines international law as a
body of principles, customs, and rules
recognized as effectively binding
obligations by sovereign States and such
other entities as have been granted
international personality.
1.1.1 Public and Private International Law 1.1.1 Public and Private International Law
[Textbook pp. 2 [Textbook pp. 2- -3] 3]
International law is sometimes referred to
as public international law to distinguish it
from the so-called private international
law.
The term private international law, coined
by some jurists to denote rules of conflict
of laws.
Disputes may arise from transactions
which involve a foreign element.
A foreign element may be involved, for
example, if one of the parties is a foreign
national, if a contract is made in a foreign
country, or if a tort is committed in a
foreign country.
In such a situation, it is not fair for a local
court to decide according to (lex fori) the
local law only and it has to take into
consideration the relevant foreign law.
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To put it another way, the local court has to
settle a choice of law problem (a choice
between local law (lex fori) and a foreign law).
Choice of law is to be done by referring to rules
of conflict of laws and these rules have come to
be known as private international law.
The term seems to be a misnomer because it is
actually not a branch of international law.
In fact, private international law is merely part of
the domestic law of a State.
1.1.2 Distinction between international 1.1.2 Distinction between international
law and national legal systems law and national legal systems [Textbook: [Textbook:
pp. 3 pp. 3- -4] 4]
International law is fundamentally different
from national legal systems.
In a national legal system, there is a
Government that can exercise sovereign
authority (or sovereignty).
A Government of a State has three
sovereign functions: law making
(legislative), law determination (judicial),
and law enforcement (executive).
There is no higher sovereign authority above There is no higher sovereign authority above
states and IL is a horizontal legal system states and IL is a horizontal legal system
International law is concerned with States
that are sovereign and equal.
Sovereignty: supreme authority above
which there is no other higher authority.
There is no higher authority above
sovereign States.
International law is, therefore, a sort of
horizontal legal system.
There is no World Government and the principal There is no World Government and the principal
organs of the UN cannot be equated to the three organs of the UN cannot be equated to the three
sovereign organs of a state sovereign organs of a state
The UN General Assembly is not a world
legislature (it has no legislative power; it cannot
make IL; its decisions are not binding).
The International Court of Justice (ICJ) can
operate only on the basis of the consent of
States to its jurisdiction (it is not compulsory for
states to submit cases).
The law enforcement capability of the UN
Security Council is limited (veto power; political
motivations).
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1.2 International law as 1.2 International law as law law
(1) (1) Theoretical approach) Theoretical approach)
Command theory
John Austin questioned the true legal
character of international law.
Austins attitude towards international law
was based on his theory of law in general.
Command theory [Cont.] Command theory [Cont.]
According to Austinian theory, law was defined
as a command enforced by a sovereign political
authority.
As there was no sovereign political authority
above the sovereign States international law
was not true law but positive international
morality.
The command theory - not complete: it does not
cover customary law. Everywhere there is
customary law side by side with statute law.
Consensual or positivist theory Consensual or positivist theory
The consensual or positivist theory
regards actual practice of States as the
foundation of international law.
The basic idea of this theory is that the
binding character of international law flows
from the consent of States.
Consent may be given expressly by
means of treaties and impliedly by means
of custom.
This theory is highly persuasive and represents
the mainstream legal thinking of the present day.
One difficulty, however, is that consent does not
explain the existence of all legal obligations.
For example, jus cogens. (A peremptory norm of
general international law from which no
derogation is permitted) [See Chapter 8: Law of
Treaties, pp. 241-45 for details]
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Natural law theory Natural law theory
According to this theory, law is derived from the
application of the law of nature as a matter of
human reasoning.
While positive law is based on the actual
practice of States, natural law is based on
objectively correct moral principles.
In other words, natural law is based on rules of
natural justice, which are regarded as correct at
all times in all places and in all situations.
As the method of law-creation in
international law is primarily dependent on
State practice or consent, natural law
theory cannot play an important role.
Traces of natural law: human rights,
international crimes and jus cogens.
Ubi Ubi societas societas, , ibi ibi jus jus
Law can only exist in a society, and there can
be no society without a system of law to regulate
the relations of its members with one another.
[Brierly]
If we apply this maxim to the situation of
international law, international law is necessary
for the international society to function, and
because it is necessary it is binding.
Pragmatic and straight forward.
Weaknesses of international law Weaknesses of international law
Not a perfect system. There are weaknesses.
(a) Lack of effective institutions
(b) Lack of effective enforcement machinery:
[international law has its own enforcement
system, which is unique and essentially different
from that of national legal systems].
(c) Lack of political will: States - reluctant to
comply with international law when their vital
interests are at stake.
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(2) Practical approach (2) Practical approach
According to State practice, international
law is constantly recognized as law.
States not only recognize the rules of
international law as legally binding but
affirm the fact that there is a law among
them.
States continuously conclude and
implement int. treaties and establish and
operate international organizations.
Serious efforts are being made to codify
international law (the ILC). [See pp. 51-52]
Modern national constitutions usually contain
references to international law (e.g. Art. IV,
Section 2 of the US Constitution; Art. 25 of the
German Constitution; See also continental
countries) [pp. 79-82]
Rules of international law are accepted as
legally binding by States because they are
useful to reduce complexity and uncertainty in
international relations.
Why do States observe international law? Why do States observe international law?
Almost all nations observe almost all principles
of international law almost all of the time.
[Henkin]
What are the motivations for the States to
observe international law?
States have internal motivations as well as
external pressures to comply with international
law.
Internal motivations:
Sense of obligation Sense of obligation
States feel obligated to honour rules of IL
because these rules are based on their
consent.
[Lotus case] The rules of law binding
upon States emanate from their own free
will expressed in conventions or by
usages.
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Common self Common self- -interest interest
The international community: more
interdependent.
Needs international law to be stable and to
maintain law and order.
It is in the interest of every State to comply
with.
Political and economic cost Political and economic cost
A State can lose much through a violation
of international law.
Besides the legal sanctions, there are
political and economic costs to be paid,
e.g., loss of credibility, loss of trust, and
reduction in foreign trade.
External pressure External pressure
The primary external pressure is the
enforcement of the law by the victim State
(and sometimes by the international
community).
1.3 ENFORCEMENT OF 1.3 ENFORCEMENT OF
INTERNATIONAL LAW INTERNATIONAL LAW
Diplomatic protests:
The traditional method of enforcing
international law.
Such protests commonly include demands
that the wrong done be appropriately
righted.
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1.3.1 Peaceful Means of Enforcement 1.3.1 Peaceful Means of Enforcement
Article 2(3) of the Charter of the UN
obliges Member States to settle
international disputes by peaceful means.
Art. 33; The peaceful means are:
negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement,
etc..
Judicial enforcement Judicial enforcement
(1) Recourse to the ICJ: Jurisdiction is
based on consent; if a matter is referred to
it, its judgment is binding on the parties
and must be carried out. [Arts. 59, 94]
(2) National courts. The decision will
definitely be binding on the parties.
Inter Inter- -State Claim State Claim
Inter-State claim (claim by the alleged
victim State against the State allegedly
responsible for the violation).
Usually the victim State seeks reparation
(remedies) in the forms of restitution,
compensation, and satisfaction .
1. 3. 2 Coercive Means of Enforcement 1. 3. 2 Coercive Means of Enforcement
(Sanctions) (Sanctions)
There can be two types of coercive
means (or sanctions):
(1) non-military means; and
(2) military means or sanctions involving
the use of force.
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(1) (1) Non Non- -Military Means Military Means
Self-help exists as a means of
enforcement in all legal systems.
In modern societies, self-help has become
the exception rather than the rule.
But in international law it has remained the
rule.
In the past, States might even go to war to
enforce their legal rights.
However, this is no longer lawful by virtue
of Article 2(4) of the UN Charter which
prohibits the threat or use of force.
The only lawful use of force in self-help is
the right of self-defence under Article 51 of
the Charter.
Countermeasures Countermeasures
The remaining forms of self-help are
countermeasures, such as retorsion and
reprisals.
Retorsion is a lawful but unfriendly act
against an unfriendly act of another States
e.g., (1) disruption of diplomatic ties; (2)
embargoes; (3) withdrawal of voluntary aid
programmes.
Reprisals are acts which would normally be
illegal but which are rendered legal by a prior
illegal act committed by the other State. [Illegal
act against an illegal act].
E.g., if State A confiscates property belonging to
State Bs citizens, State B can retaliate by doing
the same to the property of State As citizens.
Other examples of countermeasures: (1)
suspension or temporary non-performance of a
treaty obligation; (2) seizing or freezing of the
assets of a State.
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Restrictions on Countermeasures (reprisals) Restrictions on Countermeasures (reprisals)
[See [See Textbook Chapter 9 State Responsibility, pp. 278 Textbook Chapter 9 State Responsibility, pp. 278- -79. 79.
for details] for details]
(1) Must not involve the use of military
force; [Art. 2(4) of the UN Charter]
(2) Must not involve any departure from
certain basic obligations, e.g. jus
cogens; fundamental human rights.
(3) Must be commensurate with the injury
suffered (principle of proportionality).
(2) Military means (use of force) (2) Military means (use of force)
[See Textbook pp. 13 [See Textbook pp. 13- -14 and also 14 and also Chapt Chapt. 14, pp. . 14, pp.
432 432- -473] 473]
Article 2(4) of the UN Charter prohibits the use
of force .
There are two views on the interpretation of Art.
2(4): permissive and restrictive.
The better view is that the prohibition is
absolute.
Therefore, there can be no exceptions to the
prohibition except those expressly mentioned in
the Charter itself.
There are only two exceptions in the Charter for
lawful use of force:
(1) Right of self-defence under Article 51 of
the Charter; and
(2) Enforcement measures by the SC under
Chapter VII of the Charter.
[See Textbook Chapter 14 on the use of force
for the details; also need to study major
incidents.]
1.4 Development of International Law 1.4 Development of International Law
(Outline only) (Outline only)
[See Textbook pp. 14 [See Textbook pp. 14- -21] 21]
Origin of international law
Islamic international law: The Shariah; As-
Siyar.
Muhammad As-Shaybani - Kitab As-Siyar Al-
Kabir; Hugo Grotius - De jure belli ac pacis (On
the Law of War and Peace) (1625)
The formation of the present-day international
law: Eurocentric?
Attitude of the developing States towards
international law