Lecture 1

Introduction to International Law

LAW, RULES AND NORMS
Rules: Formal often written expectations of
behaviour

Norms: Less formal, customary expectations that

members of a society tend to obey

Law: The Uniformity or fixedness of action or

behaviour of a thing or occurrence of a
phenomenon.
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The Law
 Law is The principles which are set by the society.

 Law derived from the word “lag” German term means unchanging or fixed.

 In natural sciences,
 uniformity in behavior or movement of things or occurrence of phenomenon

 In social sciences,
 Rules to guide the motivated behaviour of humans as society cant exist.

 One of the great expressions of sovereignty

 It expresses the power and authority of the state against anti social behaviour

 Law embodies the values of the people of that country that in turn determine what
is right and wrong
 So laws can and do vary from country to country

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CHARACTERISTICS
1. Uniformity: General rule of Conduct( All at all time)

2. Universality: Applied to whole civic community.

3. Externality: Deals only with the external acts, not with inner thoughts,
morality.

4. Content: statements of Rights and duties

5. Formulation: issued by authority

6. Sanction or Enforcement: Coercive power, punishment

7. Binding: Depicts the value of society and everybody has to follow it

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International law
 Notion of classic era ,applying only to states
 British Philosopher, Jeremy Bentham first coined the term International Law in 1789.
 Branch of jurisprudence…exclusively concerned with mutual transactions between
Sovereign

 William Blackstone,1765-69 English Jurist, applying it not only on States but Individuals
 Intercourse which must frequently occur between two or more independent states and the
individuals belonging to each

 Clive Parry (1968) , applies to States

 Section 101 Restatement of the Law, Law of the US. Applies not only to States but also, IOs
and Individuals
“the rules and principles of general application,
dealing with the conduct of states and of international organizations in their
international relations with one another
and with private individuals, minority groups and transnational companies.
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 Now problematic and outdated to define it as purely applying to States.

J. G Starke:
Body of Law , the principles and rules of conduct which states feel themselves bound to observe and
therefore do commonly observe in their relations with each other and include….
 The rules of law relating to the functioning of International institutions, their relations with

each other and their relations with states and individuals

 Certain rules of law relating to individuals and non state entities so far s the rights or duties

of such individuals are the concern of international community.

As Documentation of International Law began in 19th century. At that time principle sovereigns
were States so narrow version. 20th century, scope widened. Now also IOs included as
subjects.

A body of Rules and principles, contained in various sources, including treaties and customs
which the subjects of international law have accepted as binding on them either in their
relations with one another per se or in those with other juristic or natural persons.
 Problems
 according to Rome statute Individuals cannot apply IL in the same way that states and IOs can
hence limited rights.

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IL categories
Private international law
or Conflict of Laws
Public international law or Law of  A branch of International law that deals with
Nations relations between private individuals or legal
persons such as corporations in which the laws
of more than one State may be applied.
 Governs interactions between states
(nations), between states and  Governs civil and commercial transactions and
international bodies (IGOs), and between dispute that contain international element.
international bodies themselves  Governs the choice of law to apply when there
 Ex.: human rights, are conflicts in the domestic/national law of
environmental law, treaty law, law of different countries that relate to private
transactions.
sea, international criminal law, the laws
 Ex. contracts, marriage & divorce, child
of war or international humanitarian
adoption
law and international human rights law.  Its section serves as National Organ to Hague
Conference on Private International Law.
Private and public are not always
mutually exclusive  Rules of private international law are part of
the internal law of the state concerned, they
may have the character of public international
law where they are embodied in treaties.

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Categorization on the basis of Operations of
Public international Law
 Operations of IL Rules and laws may vary
 International Law: Widened scope, applied to vast majority of States all over the
world. e. g Law of Use of force applied to all states, UN charter, Human Rights
Declaration, ICCPR, preemptory norms.
 Regional Law: Narrow scope, Certain IL Rules peculiar to particular regions of the
world. Applies peculiarly to States within one Region. e.g Estrada doctrine (Latin
America),EU law etc.
 Particular International Law; Rules that are accepted by only a few states, but which
are not confined to a particular region of the world. Applies only to a few states
unrelated to their geographical location hence not Regional law
 RL or particular IL are subservient to IL but certain times coincidence or conflicts do
appear. So in those situations
 Art 103,UN charter says UN obligations will prevail in case of conflict.
 Art.53 VCOLT 1969, A treaty is void if at the time of conclusion, it conflicts with a
preemptory norm of general International law.
 Regional Rules may not be subordinate but may be complimentary or correlated with
International Law
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 DIFFERENCE BETWEEN INTERNATIONAL LAW AND DOMESTIC LAW

1. The Law-making Process 2. Enforcement

 International law has no international
police force to oversee obedience to the
international legal standards to which
 There is no supreme law- States agree or that develop as
making body in international standards of behaviour.
 Similarly, there is no compulsory
international law. enforcement mechanism for the
settlement of disputes.
 In general, international law is enforced
 Treaties are negotiated through methods such as national
between States on an implementation, diplomatic negotiation
or public pressure, mediation,
adhoc basis and only bind conciliation, arbitration (a process of
States which are parties to resolving disputes other than by
agreement), judicial settlement
a treaty. (including specialized tribunals).

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Nature of IL
International Law as a law : Professor Oppenheim, J.G. Starke
International Law is not a true law : Austin and
Thomas Hobbes
1. in many communities, system of law was in force and being
1. No determinate authority: law is the command observed, without a formal legislative authority.
of a determinate superior , law is the name of
rule which every superior issues for inferior, 2. Questions of International Law are always treated as legal
compliance would be compulsory questions by those who conduct international business

3. Customary rules are diminishing and they are being replaced by

2. International law has no legislature: General law making treaties and conventions. So now it is wrong to say
that it lacks binding.
assembly Resolutions, not binding
4. Authoritative agencies responsible for maintenance of
international system so it is not a mere moral code.
3. Positive Morality: states observe the rules and
regulations in the compliance of international 5. Law Making Treaties, modern means of international legislation.
contracts with the feeling of betterment and The UN based on true legality of International Law.
ethics(positive morality). collection of
6. states do observe international law, and violations are
emotions of people and common opinion. comparatively rare.

4. There is no system of courts. ICJ can only 7. There is no unified system of sanctions in international law in
the sense that there is in municipal law, but there are
decide cases when both sides agree and it circumstances in which the use of force is regarded as unjustified
cannot ensure that its decisions are complied and illegal.
with. states are no more bound to accept them
8. Coercive action within the framework of the UN is rare because it
and may refuse requires co-ordination amongst the five permanent members of
the Security Council and this obviously needs an issue not
regarded by any of the great powers as a threat to their vital
5. no executive or governing entity: UNSC interests.
constraints of Veto
9. a series of other considerations closely bound up with the
character of international law ,the element of reciprocity.,
advantages, or ‘rewards, Reputation.

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Theoretical Basis of IL

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 Naturalism

 There is a law of nature that applies to States as applied to individuals

 there is a natural and universal principle of right and wrong, independent of any mutual
intercourse or contact, which is supposed to be discovered and recognized by every individual
through the use of his reason and his conscience.

 That law ,rights and ethics are based on universal moral principles inherent in nature.

 International law, a part of nature ,not man made or based on customs. All manmade laws have to
confirm to higher natural law

 Law of nature connected with Religion, divinity.

 Oldest view dating back to Aristotle. Exponents of this theory are Starke, Vattel, Samuel, Pufendorf
etc.

 20th century revival. Much influence of natural law on international law e.g. human rights, war
crimes
 Criticism: Various scholars have given different meanings such as reason, justice, utility, general
interest of international community

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 Positivism
 1830’s Auguste Comte , French social philosopher reject natural higher law, used the term positivism, scientific
or objective
Three branches:
Imperativism
Normativism
Legal Realism

 Imperativism: law is a command of a sovereign endorsed by the habitual obedience of his or her subject

 John Austin, law is the edifice of an authority

 Consent and will of authority

 States are bound only by those laws that are either man made or derive through customs and are issued by
sovereign.
 Law is the command of an un commanded commander
 Binding force of International law is based on supreme principle or norm: Pacta Sunt Servanda( Treaties are
followed in good faith)
 Proponents are Bynker-shoek, Hegel, Anzilotti
 Many loopholes
 International law is based on the consent of the State is far from truth. For Custom, not necessary to have
recognition by state. It is the general practice.

 Pacta Sunt Servanda cannot be the basis, it is itself a custom.

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Grotianism

 Grotius and Vattel

 this theory offers both the law of nature and the consent of states as the basis of
international law.
 Harmonizing
 It attributes equal weight to what states actually do,to custom habit or what they
must do because of nature.
 2. IL is transcendentalism as well as mundane origins

 It contends that the system of international law is based on the “dictate of right
reason” as well as “the practice of states.”
 nations as well as persons ought to be governed by universal principles
 relations among polities ought to be governed by the law of peoples,
 States agree to be bound by International law when they sign treaties and enter
into different types of agreements and when their practice indicates such
agreement
 States are bound by preemptory norms,not necessarily based on consent or
agreement but on the nature of norms

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Other Theories
 Ubi societus, ubi Jus:
 that ‘law’ is the hallmark of any political community which exists for the common good
 Law is necessary for proper functioning of society and because it is necessary, it is ex
hypothesi binding
 Realism:
 states adopt only international legal norms that either enhance their power, formalize the
subordination of weaker states, or that they intend to violate deliberately to their own advantage.
 International Law may thus address only peripheral matters that do not impact the states´ power
or autonomy.
 Liberalism:
 IL very important As codifies things that create incentives for cooperation.
 States stance towards international law is determined by domestic politics
 Democratic states tend to accept the legal regulation of both domestic and international politics
so will observe international law
 Constructivism:
 We construct through shared understanding values of our institutions, Norm diffusion, how
values transfer, how we respond.
 Critical theory:
 the nature of international law is limited because it is determined by language, which is biased
and still stuck in the conventional structures of politics and power.
 IL both liberating and critical at the same time

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 Marxists:
 IL much more problematized
 Exploitative
 Feminist Legal theory:
 Current legal vocabulary and practice by arguing it is patriarchical
presenting men as the norm and women as a deviation from the norm
 New Heaven Approach:
 international law as a constant flow of authoritative decision making.
 Myres S Mcdougal, Harold D. laswell
 Third World Approaches IL:
 TWAIL scholarship prioritizes in its study the power dynamic between the
first world and third world and the role of international law in legitimizing
the subjugation and oppression of Third World peoples.
 Georges Abi Saab, F. Garcia-Amador R. P. Anand, Mohammad Bedjaoi

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INTERNATIONAL LAW : NEED AND PURPOSE
Harmony, liberty, Unity
Creation of a civil society
Balance
Order
Justice
Protection of basic necessities of Life
Protects weak against the poor.
defines rights and duties
to regularize interactions
States are rational so for their benefits they need rules
To avoid Conflicts' related to municipal law of various
States
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Merits and Demerits of International
Law
Merits Demerits
 Protection of states’ interests. 1. lesser instruments of policy.
 Welfare of human being 2. failed to prevent wars.
3. Limited scope:
 Equality
4. There is no solid organ of International
 Unity and strength Law, which can resolve the matters of states
 Development of social values equitably.
 strengthen the case of a state which 5. Ambiguous law:
appeals to it. 6. Pace of its development and promotion is
deadly slow.
 the only objective and neutral, impartial
7. No apparent authority:
yardstick in IR.
8. No administration power:
 sets up the standard for justice.
9. Little enactment
 Bilateral relations diplomatic relations 10. Non interference:
immunities would not be possible if 11. Uncertainty about law:
international law is not there. 12. Duplicity:
 Also commercial and trade relations. 13. Depends upon states attitudes and
 International law greatly helped in the willingness.
technological advancement of the states. 14. Favor Great powers

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 WHY DO STATES OBEY INTERNATIONAL LAW?
 social welfare of society.
 If the international law is not followed then jungle law will come into operation and life
will become miserable (unhappy or uneasy).
 the establishment of peace among states.

 in the interests of most States to ensure stability and predictability in their

relations with other States.

 to ensure that other States comply with theirs.

 in every State’s interests

 recognize the need to protect common and universal human values.

 Perhaps the level of compliance is better internationally, because there are far
fewer and more restrictive laws.

 It is easy to comply with international law, when national interests and IL

coincide.
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Relevance
 States need a common understanding of rules of game and
institutional device for communicating to policy makers on consensus.
 States themselves do not deem public international law irrelevant,
they themselves willingly accept, attach importance, consider it relevant
and spend energy in interpreting these rules.
 States usually agree on general values but at the same time fail to
recognize the implications of these values.
 So absence of a reliable procedure of enforcement does not mean that states
exercise their freedoms. Enforcement is possible.
 Every violation of international law is not general lawlessness.
 International law makes possible the routinized transactions usually
governed by private international law in such activities as international
trade, foreign travel, mail flows, currency exchange.
Scope
1. During 19 and 20 th centuries three major structural shifts in international system
 Enunciation of Monroe doctrine 1823, the emergence of multiple new states in Latin America.
 Bolshevik revolution in Russia in 1917.
 Decolonization,1945-1960 the emergence of newly independent states in Asia, Africa and Latin America.

 Before WW2 international law monopolized by the members of wealthy European clubs. End of ww2
international law gradually transforming from an oligarchic law to the law of community

 Shift from international to law of people. Issues like human rights came up.

 Law of coordination to law of finalities. E.g. peace, nuclear disarmament now contribute the Manuel of
international law

 Post Cold war Scope expanded.

 Concept of common heritage of mankind was introduced
 Extradition
 Human Rights
 Outer space laws
 Airspace
 Laws of neutrality
 Treatment of civilians and POWs Geneva convention 1977
 Laws of nationality
 Treatise in the areas of terrorism, environment, intellectual property and copyright laws, health,
technology demonstrate that international law is evolving body.
Codification
The process reducing the whole body of law into code,
in the form of enacted law.
A systematic arrangement of rules of law which are
already in existence.
Modification of existing rule of law
Updating
Adaptation
Writing down of already existing law
Any systematic statement of whole or part of law in
written form.
Progressive Development
Article 15 of Statute of International law Commission
says, the preparation of Draft conventions on subjects
which have not yet been regulated by international law
or in regard to which the law yet has not been
sufficiently developed in practice of States.

New Law
History
Declaration of Paris 1856 ( Codification of laws of war
Hague Peace Conferences 1899,1907 (Merchant, Sea, Land warfare laws)
LON 1920 (Piracy, Nationality, Diplomatic Immunities)
International Law Commission 1947
Merits and Demerits
Merits:
Makes Rules clear
Fill numerous gaps
Will bring uniformity in international legal system
Minimize the disagreement and confusion
Enhance efficacy of International Law
Demerits
Detrimental for natural growth of international law
Only a partial codification is possible
Controversies in interpretation are caused