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Unit 1: Nature of

International Law
Miss E Siangandu

Learning Outcomes
1. The development of International Law (IL)
2. Nature of International Law
3. Legal persons/subjects of IL

The Development of International


Law- I
IL dates back to the 16th century, originated in Europe

although communities of states regulated by law had


previously existed in China, the Greek city states, Indian
states & Persia in the dealings of these entities with
outsiders)
IL was initially created to govern diplomatic relations,
commercial, military & other issues in relation to Christianity
among the European states.
Another starting point for other scholars is the Mesopotamian
communities who concluded treaties as early as 3100BC
Other scholars prefer to begin with Roman law
Roman law makes a distinction between Jus naturale & Jus
gentium

The Development of International


Law- II
Jus naturale (God given law) civil or natural

law for Roman citizens


Jus gentium Law of nations which
concerned relations of Romans with non
Romans
Thus was known as Law of nations until
Jeremy Bentham introduced the term
International Law in 1780
However majority of academics pinpoint the
1648 Peace of Westphalia & the modern state
system as the date marks the beginning of

The Development of International


Law- III
1648 Peace of Westphalia marked the end of the

thirty year war- It was the acceptance of Jean Boding


s thinking that kings and their states should
enjoy their sovereignty as legal equals & able to
act independently of each other.
Critical rule that emerged was that states could not
interfere with one another in internal matters for
religious or other reasons.
IL was first extended beyond Europe at the end of the
18th century to states which were rebelling against
European colonies particularly North and South
America respectively

The Development of International


Law- III
1918 & the emergence of international

organisation League of Nations


Prohibition of War- League of Nations Covenant
1919 & Paris Pact 1928
Article I
The High contracting parties solemnly declare in
the names of their respective peoples that they
condemn recourse to war for the solution of
international controversies, renounce it as an
instrument of national policy in their relations with
one another.

The Development of International


Law- IV
Permanent Court of International Justice
WWII
The United Nations & the International Court of

Justice
The UN Charter
Article 2(4)
All members shall refrain in their international
relations from the threat or use of force against the
territorial integrity or political independence of any
state or in any other manner inconsistent with the
purposes of the United Nations

The Development of International


Law- V
Nuremburg & Tokyo
Decolonisation
The Cold War, Nuclear weapons and the bi-

polar world
IL has continued to developed recently seeing
the increase of international criminal courts
and tribunals set up to try individuals for
violation of fundamental rights.

factors contributing to the


development of modern IL

Industrial Revolution
Developments in trade and communication
Spread of democracy and nationalism and

their impact on international law


The twentieth century
First World War and the Treaty of Versailles
League of Nations: its legacy
The world order after the World War II

Nature of International Law- I


Definition
International Law is the system of principles,
rules and norms which both establishes the
status of and governs relations between,
those entities having international personality
Dixon defines IL as a system of rules and
principles that govern the inter-national
relations between sovereign states and other
institutional subjects of international Law.

Nature of International
Law- II
Hillier, Tim ( 1998:2) describes international

law (IL) or law of nations as a body of rules


and principles of action which are binding
upon civilised states in their relations with
each other
IL is the body of rules which are legally
binding on states in their interaction with each
other
The rules in IL primarily govern the relations
of states, however states are not the only
subjects of IL

Nature of International
Law- III
International organisations & individuals may also

be subjects of IL
IL gradually developed from the second half of the
middle ages. This is because of a Dutch jurist
Hugo Grotius whose work (De jure Belli ac Pacis,
Libri iii- On the Law of War and Peace[1625])
become the basis for the development of IL
IL is sometimes referred to as public international
law to distinguish it from private international law
Public international law are rules and principles
which govern relations between states

Nature of International
Law- IV
Private international law are rules developed

by states as part of their domestic law to


resolve problems between private persons
involving a foreign element (i.e contracts of
sale between persons in different countries or
marriages between persons from different
legal systems)
IL plays a role in facilitating international
relations
IL is very much intertwined with politics thus
IL cannot exist in isolation from the political
factors operating in the sphere of international

Traditional view of IL
The traditional conception of IL as exclusively laws of nations for example;
Hall (1890) wrote IL consists of rules of conduct which modern civilised

states regard as binding on them in their relations with one another.


Four years later Westlake stated IL is a body of rules prevailing between
states
In 1905 Oppenheim in wrote states solely and exclusively are subjects of IL
In 1927 the Permanent Court of International Justice (PCIJ) in attempting to
settle a dispute between France and Turkey The Lotus Case PCIJ Ser A, No
10 (1927).
In passing the judgement, court felt it necessary to set down the parameters

of IL thus held;
IL governs relations between independent states. The rules of law binding

upon states therefore emanate from their own free will as expressed in
conventions or by usages accepted as expressing principles of law

Modern View I
Despite the fact that tradition IL has been developed as a

system of rules & principles intended to govern the relations


between sovereign states IL has developed beyond that
The establishment of the League of Nations after the First World
War marked a shift in the approach to international relations.
This was further developed by the establishment of the United
Nations Organisation in 1945
The Nuremberg War Crimes tribunal in 1946 raised questions of
international obligations of individuals
Universal Declaration of Human Rights 1948 suggested
possibility of individual international rights.
Following the establishment of the UN, a number of supernational organisations were established, all rising questions
about their status within the community of nation states.

Modern View II
In 1949 the International Court of Justice was asked by the

General Assembly of the UN for its option on matters arising


out of the assassination of the UN representative in Jerusalem
In course of judgement Court stated;
..the United Nations Organisation is a subject of
international law and capable of possessing international
rights and duties, and has capacity to maintain its rights by
bringing international claims Reparations for Injuries
Suffered in the Service of the United Nations case [1949] ICJ
Rep at p 174.
It has become clear that it is no longer adequate to discuss IL
in terms of the system of rules governing solely the relations
between states.

What is an entity having


International Personality
i.e. a subject of International Law?
States
International organisations e.g. the United

Nations
Controversial subjects e.g. Corporations &
non- governmental Organisations (NGOs)
Individuals - Individuals as subjects of
international law
international criminal responsibility
international protection of human rights

The Characteristics of International


Law
System of sovereign equal states
Decentralised
System depends primarily on consent
No International Constitution
No International legislature
No compulsory court jurisdiction
No formal system of sanctions- possible

exception of UN Security Council

Is international Law real law? - I

Questions surrounding the status of International Law as law

can be traced back to John Austin in his book The Province


of Jurisprudence Determined where he described law as
being commands
Law has to be created by a sovereign
Austin goes further to claims that IL is not really law
because of the absence of the sovereign
It cannot be enforced hence IL only imposes duties which
can only be enforced by moral sanction.
Absence of a central government (world government)- lack
of sanctions readily available to punish transgressors as is
the case in countries (Bull 1995)
Countries cannot be arrested & put into jail for violation of IL

Is international Law real law? - II


Yes IL is evident through the behaviour of states in their

interaction with each other


States obey the law because it is in their interest to do so
IL is not based on commands backed by sanctions but
instead based on voluntary compliance
The fact that there is an absence of sanctions does not
make IL not real law
i.e under municipal law people obey the law because they
believe it is in their enlightened self-interest to do.
The national government does not force every citizen to
obey every law. If then was the case need to hire more
police.

Weakness of IL
The demands that IL makes for states are not pleasant

hence states turn to violated IL


Challengers of the enforceability of IL
Question of Sanctions
Lack of Police force
Absence of a legislature to develop new law as
international society demands
Lack of executive power to enforce the law*
ICJ statute proves for mechanisms for Peaceful
settlement of disputes ( arbitration, medication,
negotiation. Etc) but problem resort to them is not
compulsory states need to consent - ineffective

Is International law, law?

Arguments against: creation, enforcement,

effectiveness

Arguments for: high degree of obedience,

conciliatory, consensual character of rules: a


better way to secure compliance?

Effectiveness of international law in


regulating international community.
prevention of military conflicts and offensive wars
securing free trade and commercial activity

responding to global and regional

environmental challenges
dealing with humanitarian crises
Other?
Purpose of international law
Is there such as thing as the International
community
why and how should IL be regulated?