Chapter 1

THE NATURE OF INTERNATIONAL LAW

What is international law?

The traditional definition of international law is that it is a body of rules and
principles of action which are binding upon civilized states in their relations to one
another. States are the sole actors in this definition and, in the past, public
international law dealt almost exclusively with regulating the relations between
states in diplomatic matters and in the conduct of war. Today, sovereign states
remain as the principal subjects of international law; but they are now joined by
international organizations and even by individuals.' Thus, the Restatement (Third)
of Foreign Relations Law of the United States, which U.S. courts generally
consider as the most authoritative work on the subject, defines international law as
the law which deals with the conduct of states and of international organizations
and with their relations inter se, as well as with some of their relations with
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persons, whether natural or juridical.

Scope of international law.

The expansion of the scope of international law is nothing short of
revolutionary: New subject matters are being added, new subjects of international
law are being recognized, non-Western states are flooding into the community of
nations, political and social principles are changing, international organizations are
assuming new roles. This is being affected by various factors: rapid changes in
technology, the multiplication of the number of states with differing backgrounds
and achieving loose forms of cooperation, fear of war, rising demands for social
reform.

'Subjects of international law will be treated at greater length in Chapter 5.

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101. Hereinafter to be cited as RESTATEMENT.

INTRODUCTION TO PUBLIC INTERNATIONAL LAW

The topics that are covered by international law today include the regulation
of space expeditions, the division of the ocean floor, the protection of human
rights, the management of the international financial system, and the regulation of
the environment. Beyond the primary concern for the preservation of peace, it now
covers all the interests of contemporary international and even domestic life.

Is international law a law?

The question is sometimes asked whether international law is indeed law.
The basic challenge to international law as law is the claim that there can be no
law binding sovereign states. Moreover, there exists no international legislative
body. There is, of course, the General Assembly of the United Nations; but its
resolutions are generally not binding on anybody. There is no international
executive. The Security Council was intended to be that entity but it is often
effectively hamstrung by the veto power. Neither is there a central authority that
can make judgments binding on states. The International Court of Justice can bind
states only when states consent to be bound. Moreover, national officials tend to
find justification for whatever they do. Psychologically too, the allegiance to ones
sovereign state can be very strong to the point of defying reason. When the
chips are down, national policy or interest is often preferred over international
law. Enforcement of international law is a real problem for several reasons.
Frequently, there is no assured procedure of identifying violation. Even the powers
of the UN have reference largely to lawbreaking that takes the form of an act
of aggression or threat to peace. But there are many violations of international law
which are not of this nature. Most of the time, all the UN can do is censure. For
these reasons, it is said that what is called international law is not law
because it is commonly disregarded.
These objections are based on an exaggerated notion of sovereignty as
embodying an individualist regime. This, however, is not the reality. The reality is
social interdependence and the predominance of the general interest. The reality is
that States are bound by many rules not promulgated by themselves. As Henkin
observes, It is probably the case that almost all nations observe almost all
principles of international law and almost all of their obligations almost all of the
time.

Henkin, HOW NATIONS BEHAVE 42.

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