Chapter 1 – the nature of international law and the international

system

International law has for as long as it has existed been questioned:

- The existence of any set of rules governing inter-state relations
- Its entitlement to be called “law”
- Its effectiveness in controlling states and other international actors in “real life”
situations.
International law’s primary purposes: to maintain an ordered community where the
weak are protected from the arbitrary action by the strong.
The story of international law and the international legal system: one of achievement
and disappointment.
The debate about whether “international law” exists as a “system of law”: a debate about
the nature of international law. Is it unproductive and irrelevant?
Reasons why international law is not regarded as “true law”: we compare it to national
legal systems. National legal systems and its institutions are held up as the definite
model of what “the law” and “a legal system” should be like, with courts, legislative
assemblies and enforcement agencies.
But why should international law be compared to national law’s standards?
National law: primary legal rights and duties of legal persons (individual and
companies) within one body– the state or a similar territorial entity. The law is
derived from a legal superior (parliament or persons with legal power), the law is
recognised as legally competent by the society to whom the law is addressed (ex
constitution). The governing power has both the authority and the practical
competence to make and enforce law.
International law: concerned with the rights and duties of the states themselves.
In the relationship between the states it is not a legal superiority. States are equal
and the legal system which regulate the relation between them must therefore
reflect this. The law must facilitate the interaction between the states rather than
control or compel them like national law exerts over its subjects.
The role of international law
Definition: international law comprises a system of rules and principles that govern the
international relations between sovereign states and other international subjects of
international law.
The rules of international law are primary created by states, either for their own
purposes or as a means of facilitating and controlling the activities of other actors on the
international plane. But international law is still not unconcerned with individuals or
non-governmental organisations.

Rules of international law cover almost every fact of inter-state and international
activity. There is very little that is done in the international arena that is not regulated
by international law.
International law is the vital mechanism without which an independent world could not
function.
The practice of international law is closed bound up with diplomacy, politics and the
conduct of foreign relations. It is not the only facilitator or controller of state conduct.
The most cogent argument of the existence of international law as a system of law is that
members of the international community recognise that there exists a body of rules
binding upon them as law. States believe international law exist.
How do we know that states believe that there is a set of rules binding them as law?
Evidence of the existence of international law:
International law is practiced on a daily basis in the Foreign Offices, national
courts and other governmental organs of states, and international organisations.
States do not claim that they are above the law or that international law does not
bind them. States follow rules of international law as a matter of obligation, not
simply as a matter of choice or morality.
International legal rules are consistently obeyed. The everyday operation of
international law goes on in a smooth and uninterrupted fashion. The vast
majority of the rules of international law are obeyed most of the time.
The function of all legal systems is to resolve disputed questions of fact and law.
International law sometimes fails, much because of the limited number of
developed legal institutions. It just has a less organised approach to the problems
of adjudication and enforcement.
The enforcement of international law
Three questions often raises:
Does the existence of any system of law depend on the chances of effective
enforcement?
Is it true that international law is not enforceable or effective?
Is it really true that the test of the binding quality of any “law” is the presence or
absence of assured enforcement of its rules?
A better view of national law may be that it is “law” not because it will be enforced, but
because it is generally accepted as such by the community to whom it is addressed: the
local population. The national society recognises that there must be some rules
governing its life and as long as these come into existence in the matter accepted as
authoritative, they are binding. The validity of “law” may depend on the way it is
created, that being the method regarded as authoritative by the legal subjects to whom it
is addressed. The fact of enforcement is not the reason why rules are actually law.
The fact that rules come in to being in the manner accepted and recognised by states as
authoritative is enough to ensure that law exist.
If international law is regarded as a system of law it is axiomatic that all states are under
a legal obligation to abide by its rules.

While international law has never been wholly dependent on a system of

institutionalised enforcement, the absence of a “police force” or compulsory court of

general competence does not mean that international law is impotent. There are a range
of enforcement procedures:
UN’s Security Council may take “enforcement action” when a state poses a threat
to the peace or has committed an act of aggression or breach of the peace.
Enforcement action is authorised by resolution of the Council. The action may
comprise military actions, economic sanctions or diplomatic, political and social
actions. SC can also operate against non-state entities. The SC’s powers are
exercised in response to a breach of the peace, threat to the peace or act of
aggression and they are not specifically intended to meet the non-fulfilment of
general legal obligations.
 Constitutionally, the powers of the Council are designed primarily to preserve the
peace rather than to enforce the law, although sometimes these can coincide, as
with Iraq and Kuwait. Ultimately, the issue turns on the political will of states and
the degree of corporation among the five permanent members.
To ensure that any violation of law results in the loss of corresponding legal
rights and privileges. A state’s unlawful action may cause the community at large
to impose penalties. Expulsion or suspension. These methods of enforcement
should not be underestimated for they can cause embarrassment and hardship to
the delinquent state. But they are often more appropriate for dealing with
violations of international good-practice rather than law and a state could choose
to ignore a violation of international law if it is in its interest to do so.
However, the loss of legal rights and privileges can have a greater practical effect
on a delinquent state than overt displays of force, especially in today’s highly
interdependent international community.

Judicial enforcement. Ad hoc tribunals, ICJ, ICC. ICJ’s award is binding on the
parties, if they have compelled to use the court. There has also been a growth of
specialised judicial institutions concerned with discrete issues of international
law. Ex Iran-US Claims Tribunal and Yugoslavia and the Rwanda Tribunals. Many
problems of international law arise in the national courts of states. Usually a
dispute between a state and an individual. Domestic tribunals.

The effectiveness of international law

Reasons why international law works:
The common good: the effectiveness of international law is used on common selfinterest and
necessity. International law is needed in order to ensure a stable and
orderly international society. It is in every state interest to abide by the rules of
international law, for they lay down orderly and predictable principles for the
conduct of international relations and international commerce. It provides a
stable and authoritative regime for the conduct of international relations and the
regulation of global issues.
The psychological Rubicon: the law has a self-perpetuating quality. When a state
can chose between a legal an illegal action, few state will act consciously in

violation of the law. There is therefore a psychological barrier against breaking

international law, simply because it is law.
The practitioners of international law: international law operates hand in hand
with international politics and diplomacy. The application of international law is
a matter for the considered judgement of some individual somewhere. A judge,
legal adviser, a government official. These are the actual practitioners of
international law.
The flexible nature of international law: international law is not an “adversarial”
system of law. Many of its rules have evolved from the practice of states. This
contributes to see disputes less “right” and “wrong”.
The political cost: a violation of international law can lead to: legal sanctions and
political and economic costs. Loss of influence and loss of trust. I addition: public
and embarrassing criticism.
The weakness of international law
The development of the system depends ultimately on the political will of sovereign
states.
Lack of institutions: international law lacks many of the formal institutions
present in national systems. No formal legislative body, no court machinery with
general compulsory jurisdiction, no police force. This leads to difficulties.
Lack of certainty: the disadvantage of a system of flexible and open-ended rules is
a lack of certainty. Often disputes rises from unclear rules and not because of a
state’s illegal actions.
Vital interest: in all legal systems, the vital interests of its subjects may prevail
over the dictates of the law. It is unrealistic to expect perfect obedience. When a
state believes its “vital interests” to be threatened, it is not certain that
international law will be able to prevent illegal conduct. But the law can soften
the state’s reaction to the threat.
Vital rules: ex use of force. Vital interests like this must be obeyed or enforced.
The law seems however powerless to prevent breach of these rules. The inability
of international law to prevent or control outbreaks of violence is not as
destructive as it would be if it occurred in national legal systems.
The juridical basis of international law
Where does international law derive its legal validity? What is the juridical origin or
source on international law? Why is it law?
The command theory:
John Austin: philosopher, 19th century: law comprise a series of command or
orders, issued by a sovereign and backed by the threat of sanctions
(enforcement) if the commands were disobeyed. He looked at international law
as no law because it does not result form the commands of a sovereign.
Customary law: state practice, treaty law: consent. Because the law is not made

up from commands, it should be looked at as positive morality and not law.

This theory has been largely discredited. The primary purpose of international
law is not to coerce or command states, but to enable them to interact freely by
laying down orderly, predicable and binding principles.
The consensual theory:
The binding quality of international law (its existence of law) flows from the
consent of states. A positivistic system of law based on the actual practice of
states. No international law can be created without the consent of the state which
is to be bound.
“New” states will therefore not be bound by pre-existing rules because consent is
the source of all legal obligations. The theory recognises that a state’s consent
may be given in a variety of ways – express in treaties or implied in custom. The
system is based on voluntary self-restriction.
But, why should states only be bound by self-imposed obligations? Where is the
legal authority for the pacta sunt servanda/consent rule? And consent does not
explain the existence of all legal obligations.
The consensual theory is attractive, but it does not describe accurately the reality
of international law. Content is a method for creating binding rules of law, rather
than the reason why they are binding.
Natural law: the law of nature. An ideal system of law, founded in the nature of
man as a reasonable being. Thus, rules are derived from the dictates of nature as
a matter of human reason. The law derive its binding force from the application
of “the law of nature” to the methods of law creation used by states.
Consensual law: law based on the actual practice of states
Natural law: law based on objectively moral principles.
Empirically, natural law finds little support in international law.
It may be that international law derives from practical necessity. Law is necessary for
the society to function and, because of this it is binding.

Chapter 2 – the sources of international law

Art. 38 of the Statue of the International Court of Justice:
Not a complete list
Non-state actors may well contribute to law creation, not just states
It gives no indication of the priority or hierarchy of the sources
Distinction between “formal”, “material” and “evidentiary” sources.
In order to understand the distinction between formal and material sources of law, it is
necessary to concentrate on the function which “sources of law” can perform within a
legal system.
Formal source: the procedures/methods by which rules become legally binding
are formal sources of law. A process by which a legal rule comes into existence:
law making. Passes of a bill though parliament, customary law, treaties, general
principles of law. The formal act of law creation.

Material source: sources of law concerned with the substance and content of legal
obligations. The function of material law is to identify the substance of the
obligations which become law: state practice, practice of non-state actors,
juridical decisions, the writing of jurists and the GA resolutions. Material sources
indicate what a state’s obligation actually is.
Law-identifying and tries to enable the “subjects of law” (the legal entities to
whom the law is addressed) to be reasonable certain about what the law requires
in a practical context.
Evidentiary sources: this has nothing to do with functions, all to do with
substance. State activity, diplomatic memoranda, statements of government
representatives in international organisations and the actual text of treaties.
These sources tell us exactly what a state can or cannot do.
International treaties:
Treaties are voluntary – consent is needed
The parties get bound by its terms
A treaty can codify existing customary law and therefore be binding for all states
Law or obligations: the treaty as a contract or the treaty as a source of law.
“Law-making” treaties: universal and general relevance
“Treaty-contracts”: applies only between two or a small number of states.
Custom: general, uniform, consistent practice and recognition (opinio juris)
Law evolved from the practice or customs of states.
North Sea Continental Shelf, the Lotus Case, Norwegian Fisheries Case and
Nicaragua.
State practice: actual activity, concrete statements, abstract statements, national
legislation and the practice of international organisations.
o Consistent practice: the practice must be reasonably consistent. Constant
and uniform. Settled practice. No need for total consistency, substantial
consistency is OK. Norwegian Fisheries Case: the degree of consistency
required may vary according to the subject matter of the rule in dispute.
o Generality of practice: the practice must be fairly general. Otherwise a
local custom only binding a few states. The practice needs to be generally
adopted in the practice of states. Some states will be more affected by the
rules and therefore their practice is more significant. The concept of the
“persistent objector”: initial and sustained objection will prevent a state
being bound by a customary rule.
o Duration of practice: the length of time needed will vary from subject to
subject. Practice of only a brief period of time is not necessarily a bar to
the formation of customary law.
Opinion juris: states must recognise the practice as binding upon them as law.
States must believe that the practice is obligatory. A belief in the obligatory
nature of the practice. This is a distinct requirement that has to be positively
established. The degree of proof required for opinion juris will vary according to
the subject matter of the disputed customary rule. Lotus case. North Sea
Continental Shelf cases.

The persistent objector principle:

A state will not be bound by a customary rule if it objects to the particular

practice or if it adopts a contrary practice.
Ex: Norway and the “10 mile rule” in the Anglo-Norwegian Fisheries Case.
Subsequent objection to an established rule of customary law cannot prevent the
rule from binding the state because states cannot avoid legal obligations once
they have come into being.
An argued exemption from this rule: “new states”. If the state was not in existence
at the time of the formation of the custom the state will not be bound.
The relationship between customary and treaty law
These are not in competition, they are two major and necessary components of the
international legal order.
Where custom and treaty complements each other: few problems.
Where custom and treaty conflict:
1) If the treaty is later in time, the treaty will prevail.
2) If the custom has developed subsequent to the treaty, the position is unclear –
but custom is likely to only modify treaties in very exceptional circumstances
(manifest and overwhelming consensus). The treaty continues to govern the
relations between the parties even though a new practice has developed. ICJ will
try to avoid a conflict and will try to interpret the treaty as complementary to the
new custom as far as is possible.
3) The treaty is displaced where rules of jus cogens are concerned. Art. 53 of
Vienna 1969:
Rules of jus cogens: a peremptory norm of general international law is a norm
accepted and recognized by the international community of States as a whole as a
norm from which no derogation is permitted and which can be modified only by
a subsequent norm of general international law having the same character.
The treaty is void, whether or not the rule of jus cogens developed before or after
the treaty came into force, jf. Art. 64 in Vienna 1969. A treaty is allowed to
regulate jus cogens rules, but not contradict them.
The general principles of law:
Natural law doctrines. A pre-existing legal validity.
Material sources, not formal.
Rules and principles that are common to all legal systems
General principles of international law. Sovereign equality of nations and state
jurisdiction within its jurisdiction.
The principles must be provided by “real” norms of treaty or customary law to be
binding upon the states.
If not binding law, the principles may have a profound impact on the
development of international law.
Examples of general principles:
o The principle of good faith

o
o
o

The principle of equity; fairness and justice

The protection of human rights
The prohibition of genocide
Law of the sea rules

Judicial decisions:
ICJ
Subsidiary sources of international law
A declaratory of pre-existing law
Binding force only between the parties and in respect of that particular case.
A law identifying or material sources of law
ICJ is more involved in law creation than the Statue suggest.
ICJ’s decisions may have a profound impact on customary law.
Judicial decisions can be derived. Lotus case.
Other tribunals:
Many international disputes are settled elsewhere than in the ICJ
Arbitration panels
National courts
Specialized institutions
Regional courts
ICC
The Inter-American Court of Human Rights
The European Court of Human Rights
The Yugoslav War Crimes Tribunal
The Law of the Sea tribunal
The African Court of Human and people’s rights
Writing of publicists:
Material or evidential sources, not formal. Writings cannot create law.
May have importance where a rule is vague or uncertain.
May have direct impact on customary law – it can help establish state practice
by predicting trends and encouraging states to follow the predicted – and
desirable path.
It may have a tangible effect on state practice as well as being the everyday
first reference of the practising international lawyer.
Resolutions and decisions of international organisations:
Material or evidential sources, not formal.
Principles contained in the resolutions of most international organisations cannot
be regarded as rules of law simply by reason of their incorporation in such a
formal text.
Formal resolutions may accelerate the formation of customary law as well as
providing crucial evidence of the elusive opinion juris.
GA resolutions. Legal considerations.
Regional organisations. International Labour Organisation resolution and the
Atomic Energy Agency resolutions have developed the law relating to worker’s
rights and the use of nuclear materials.

SC.

International Law Commission: established by the GA. The most important of the
organs for the study and development of the law. Prepare a draft and submit it to
states for their comments. Usually followed by an international conference.
Eventually a treaty will emerge.
Special hierarchy rules:
Obligations erga omnes: rights or obligations owed toward all. For ex. property
right is an erga omnes entitlement, and therefore enforceable against anybody
infringing that right. An erga omnes right (a statutory right) can here be
distinguished from a right based on contract, unenforceable except against the
contracting party. States are as a generality subject to the rule in question and
may be seen as having a legal interest in the matter. All states can be held to have
a legal interest in their protection. Slavery, genocide, discrimination, torture.
Rules of jus cogens: substantive rules recognised to be of a higher status. Art. 53
of the Vienna Convention 1969. A treaty will be void if it conflicts with a rule of
jus cogens; a peremptory norm of general international law. Regardless of when
the rule occur.
A norm accepted and recognised by the international community of states as a
whole, a norm which no derogation is allowed and which can only be modified by
a subsequent norm of general international law having the same character.
Unlawful use of force, genocide, slavery trading, piracy and torture.
It is clear that only rules based on custom or treaties may form the foundation of
jus cogens norms.
Very important to identify the mechanism by which rules of jus cogens may be
created – since once created no derogation is permitted.
1) Establishment of the proposition as a rule of general international law.
2) The acceptance of that rule as a peremptory norm by the international law
community of states as a whole.
What about the relationship between the rules of jus cogens and art. 103 in the
UN Charter? It does not apply here.
Use of force: Nicaragua
Genocide: Bosnia Genocide case.
Consequences: non-derogation and all states can complain (erga omnes).
Soft law:
A term used to describe two different but related phenomena in international law:
1) A name given to those rules of international law that does not stipulate concrete
rights or obligations for the legal persons to whom they are addressed. Normative rules.

They are rules of law, but their content is flexible or vague.

Much soft law in non-traditional areas of international law, such as treaties

concerned with human rights and environmental protection.
Soft law often creates incremental or relative obligations, ex “The parties obliges
to take stapes, individually and through international assistance, with a view to
achieving progressively the rights recognised in the treaty.”
Soft law is often vague in what it require states to do in order to avoid
international responsibility – ex “pay appropriate compensation”.
Soft law may lead to the development of “hard law”, like with the human right
treaties.
2) A description of those values, guidelines, ideas and proposals that may develop into
rules of international law but have not yes done so.
Not really law, just another word for principles de lege ferenda, or principles
which could become normative in the future.
Only proposals for development or agreed, non-binding plans of action. They will
become law only by the action of the customary, treaty or other law-making
process.