CHAPTER ONE: UNDERSTANDING INTERNATIONAL LAW

Understanding Laws

Law: is an element which binds the members of the community together in their adherence to
recognize values and standards.

 It is both permissive in allowing individuals to establish their own legal relations with
rights and duties, as in the creation of contracts, and coercive, as it punishes those who
infringe its regulations.
 Law consists of a series of rules regulating behavior, and reflecting, to some extent, the
ideas and preoccupations of the society within which it functions.
 The principal subjects of international law are nation-states, not individual citizens.
 There are many contrasts between the law within a country (municipal law) and the law
that operates outside and between states, international organizations and, in certain cases,
individuals.
 The governments of all states, whether civilized or barbarous, are compelled to exert
activity, not merely in conducting their internal affairs, but also in regulating their
conduct towards the governments and peoples of other states.
 International law, is 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 peers, or in those with other
juristic or natural persons.

Some Basic Characteristics of Public International Law

 Public international law covers relations between states in all their

myriad/numerous forms, from war to satellites, and regulates the operations of
the many international institutions.
 It may be universal/ general, in which case the stipulated/predetermined rules
bind all the states (or practically all depending upon the nature of the rule), or
regional, whereby a group of states linked geographically or ideologically may
recognize special rules applying only to them.
 It reveals that the authority of international law derives principally from the
 acceptance of its binding force by its subjects;
 The rules of international law must be distinguished from what is called
international community, or practices such as saluting/gesturing the flags of
foreign warships at sea, which are implemented solely through courtesy/civility
and are not regarded as legally binding.
 Similarly, the mistake of confusing international law with international morality
must be avoided. While they may meet at certain points, the former discipline is a
legal one both as regards its content and its form, while the concept of
international morality is a branch of ethics. This does not mean, however, that
international law can be divorced from its values.
 To get a better idea of how States operate under international law, it helps to
compare the activities of individuals in the national arena with the activities of
States in the international arena. Unlike the national legal system, the
international legal system is incredibly decentralized and loosely bound together,
leading some scholars to the conclusion that the international system is not a
legal system at all but rather a changing network of moral bonds between largely
autonomous State actors. Consider this issue as you looks at the following chart.

National Legal System International Legal System

Individual people have rights and duties under States have rights and duties under the law.
the law.

The government makes the laws (typically the There is no international government or
legislature). legislature that makes laws applicable to all
States. Rather, States have to consent to the
laws individually, either by entering into
treaties with other States or by creating
customs through their behavior.

The judiciary decides on the rights and duties Although there are many international
of individual people. tribunals, for example the International Court
of Justice, none of them has compulsory
 jurisdiction to decide on the rights and duties
of States. Rather, States must first consent to
the jurisdiction of an international court before
the court can make a decision about those
States’ rights and duties.

The government enforces the law (typically the Again, there is no international government
executive branch). with the authority to command States. This
has led some scholars to argue that there are no
real enforcement mechanisms at the
international level. Individual States, acting
alone or through the United Nations or some
regional organization like NATO, must enforce
their own rights. This results in uneven
enforcement of international laws. Is this a
problem? Is enforcement a matter of politics,
that is, at the discretion of powerful States?

Individuals have formal equality before the States also have formal equality before the law
law. Thus, the law applies the same to the in the international system. When States go
weak and the powerful, the poor and the rich. before the International Court of Justice, for
example, there are no special privileges
accorded to more powerful States. Still,
because enforcement is only possible with the
backing of a powerful State, the law in practice
may be applied unequally.

The Scope of International Law

International law now covers vast and complex areas of transnational concern, including

 traditional topics, such as: the position of states, state succession, state
responsibility, peace and security, the laws of war, the law of treaties, the
 law of the sea, the law of international water-courses, and the conduct of
diplomatic relations,
 new topics, such as: international organizations, economy and
development, nuclear energy, air law and outer space activities, the use of
the resources of the deep sea, the environment, communications, and, last
but not least, the international protection of human rights.

Function of International Law

International law performs many functions, and these include:
o Eencouraging friendly relations among states, outlawing wars among nations, and
promoting the peaceful resolution of disputes among nations.
o Maintenance of international peace and security among States.
o Settlement of disputes among States.
In general, international law is helpful,
 To establish peace and order in the community of nations and to prevent the employment
of force, including war, in all international relations;
 To promote world friendship by leveling the barriers, as of color or creed;
 To encourage and ensure greater international cooperation in the solution of certain
common problems of a political, economic, cultural or humanitarian character; and,
 To provide for the orderly management of the relations of states on the basis of the
substantive rules they have agreed to observe as members of the international
community.
Sources of International Law
 By sources one means those provisions operating within the legal system on a technical
level, and such ultimate sources as reason or morality are excluded, as are more
functional sources such as libraries and journals. What is intended is a survey of the
process whereby rules of international law emerge. In developed national legal systems
there are definite methods of identifying the law, primarily by reference to the
constitution, legislation (statutes) and judicial case law. In the decentralized international
legal system, lacking a hierarchical structure, the problem of finding the law is much
more complicated. There is no authority to adopt universally binding legislation and no
compulsory jurisdiction of international courts and tribunals without the consent of states.
This perplexity is reinforced because of the anarchic nature of world affairs and the clash
of competing sovereignties. Nevertheless, international law does exist and is
ascertainable. There are sources available from which the rules may be extracted and
 analyzed. In this system the same subjects of international law that are bound by
international rules and principles have created them themselves.

Article 38(1) of the Statute of the International Court of Justice provides:

The Court, whose function is to decide in accordance with international law such disputes as are
submitted to it, shall apply:

A. International conventions, whether general or particular, establishing rules expressly

recognized by the contesting States;
B. International custom, as evidence of a general practice accepted as law;
C. The general principles of law recognized by civilized nations;
D. Judicial decisions and the teachings of the most highly qualified publicists of the various
nations, as subsidiary means for the determination of rules of law.

Treaties
Treaties are agreements between nations to act, or refrain from acting, in a particular manner.
International law has been in existence for hundreds of years in the form of treaties between
nations. In contrast with the process of creating law through custom, treaties (or international
conventions) are a more modern and more deliberate method. Traditionally, treaties addressed
issues like territorial disputes. However, treaties written in recent years often address trade issues
or security alliances. The practice of publishing collections of treaties concluded by a certain
state or group of states commenced during the second half of the seventeenth century. Since
1945, in accordance with Article 102 of the UN Charter, more than 33,000 treaties have been
registered with the United Nations, several thousand of which are multilateral. As collectivism
has replaced laissez-faire, a large number of questions have become subject to governmental
regulation and to intergovernmental regulation when they transcend national boundaries. Modern
technology, communications and trade have made states more interdependent than ever before,
and more willing to accept rules on a vast range of problems of common concern extradition of
criminals, safety regulations for ships and aircraft, economic aid, copyright, standardization of
road signs, protection of foreign investment, environmental issues and so on. The rules in
question are usually laid down in treaties; with the result that international law has expanded
beyond all recognition in the last 140 years (although it must be pointed out that most of the rules
are too specialized to be dealt with in ordinary textbooks on international law).
Treaties are the major instrument of cooperation in international relations, and cooperation often
involves a change in the relative positions of the states involved (for example, rich countries give
money to poor countries). Treaties, therefore, are often an instrument of change a point which is
forgotten by those who regard international law as an essentially conservative force. The general
trend, particularly after the Second World War, has been to enhance the role of treaties in
international law-making, partly in response to increasing interdependence, partly as a solution to
the controversies that exist between diverse groups of states as to the content and validity of
older customary rules.

Law-making treaties and ‘contract treaties’

Treaties are the maids-of-all-work in international law. Very often they resemble contracts in
national systems of law, but they can also perform functions which in national systems would be
carried out by statutes, by conveyances, or by the memorandum of association of a company. In
national legal systems, legislative acts of parliament are regarded as sources of law, but contracts
are not; contracts are merely legal transactions. (Contracts create rights and duties only for the
contracting parties, who are very few in number, and it is generally agreed that a ‘source of law’
means a source of rules which apply to a very large number of people.) Some writers have tried
to argue that treaties should be regarded as sources of international law only if they resemble
national statutes in content, that is, if they impose the same obligations on all the parties to the
treaty and seek to regulate the parties’ behavior over a long period of time. Such treaties are
called ‘law-making treaties’ (traités-lois) and their purpose is to conclude an agreement on
universal substantive legal principles (i.e. human rights treaties, Genocide Convention).
According to this theory, ‘contract-treaties’ (traités-contrat), that is, treaties which resemble
contracts (for instance, a treaty whereby one state agrees to lend a certain sum of money to
another state) are not sources of law, but merely legal transactions.

However, the analogy between national statutes and law-making treaties is misleading for two
reasons. First, in national systems of law anyone who is contractually competent (i.e. anyone
who is sane and not a minor) can enter into a contract, but parliamentary legislation is passed by
a small group of people. In international law, any state can enter into a treaty, including a law-
making treaty. Secondly, in national systems of law contracts create rights and duties only for the
contracting parties, who are very few in numbers, whereas statutes of national law apply to a
very large number of people. In international law all treaties, including law-making treaties,
apply only to states which agree to them. Normally the parties to a law-making treaty are more
numerous than the parties to a ‘contract-treaty’, but there is no reason why this should always be
so.

The only distinction between a ‘law-making treaty’ and a ‘contract-treaty’ is one of content. As a
result, many treaties constitute borderline cases, which are hard to classify. A single treaty may
contain some provisions which are contractual and others which are law-making. The distinction
between law-making treaties and contract-treaties is not entirely useless; for instance, a contract-
treaty is more likely to be terminated by the outbreak of war between the parties than a law-
making treaty. But it is too vague and imprecise to justify regarding law-making treaties as the
only treaties which are a source of international law. The better view is to regard all treaties as a
source of law. At any rate, the law of treaties applies to both types of treaties.

Custom
Much of international law comes from customs that have existed for many years. For instance, in
any primitive society certain rules of behavior emerge and prescribe what is permitted and what
is not. Such rules develop almost subconsciously within the group and are maintained by the
members of the group by social pressures and with the aid of various other more tangible
implements. They are not, at least in the early stages, written down or codified, and survive
ultimately because of what can be called an aura of historical legitimacy. As the community
develops it will modernize its code of behavior by the creation of legal machinery, such as courts
and legislature. Custom, for this is how the original process can be described, remains and may
also continue to evolve. It is regarded as an authentic expression of the needs and values of the
community at any given time. On the other instance, the principle of diplomatic immunity (when
foreign government officials are not subject to the jurisdiction of local courts) is one of the oldest
legal concepts in foreign relations, and is based primarily on custom. In fact, the principle of
diplomatic immunity dates all the way from antiquity, when the Greek government extended
special status to foreign envoys. Even though these laws may not be formally written down, they
are part of international law because the customs have been followed for so long.
Custom does mirror the characteristics of the decentralized international system. It is democratic
in that all states may share in the formulation of new rules, though the precept that some are
more equal than others in this process is not without its grain of truth. If the international
community is unhappy with a particular law it can be changed relatively quickly without the
necessity of convening and successfully completing a world conference. It reflects the consensus
approach to decision making with the ability of the majority to create new law binding upon all,
while the very participation of states encourages their compliance with customary rules. Its
imprecision means flexibility and ambiguity. Indeed, the creation of the concept of the exclusive
economic zone in the law of the sea may be cited as an example of this process.

Customary International Law is composed of two elements:

1) There must be a consistent and general international practice among states
2) The practice must be accepted as law by the international community called opinion juris.

The main evidence of customary law is to be found in the actual practice of states, and a rough
idea of a state’s practice can be gathered from published material—from newspaper reports of
actions taken by states, and from statements made by government spokesmen to Parliament, to
the press, at international conferences and at meetings of international organizations; and also
from a state’s laws and judicial decisions, because the legislature and the judiciary form part of a
state just as much as the executive does. At times the Foreign Ministry of a state may publish
extracts from its archives; for instance, when a state goes to war or becomes involved in a
particular bitter dispute, it may publish documents to justify itself in the eyes of the world. But
the vast majority of the material which would tend to throw light on a state’s practice concerning
questions of international law correspondence with other states, and the advice which each state
receives from its own legal advisers is normally not published; or, to be more precise, it is only
recently that efforts have been made to publish digests of the practice followed by different
states.

State practice should be both extensive and virtually uniform. Instances of non-compliance with
a rule do not mean that the rule has not come into being. State practice need not be absolutely
uniform, individual deviations do not necessarily lead to conclusion that no rule has crystallized.
Deviations can actually prove that there is a customary rule, because the State or others feel that
there has been a breach of something.
General Principles of Law
General principles of law are a source of international law that is theoretically equivalent to
treaty or customary law. But in actual practice, general principles are used mostly to close
gaps left by treaties and customary law. General principles of law are established by
comparing national legal systems. Any principles common to all or most of these systems may
be applied also in an international law context. Examples would be principles such as the binding
nature of agreements, protection of acquired rights, prohibition of unjust enrichment or principles
of procedural fairness before a court of law.

General principles of law are obviously useful and are quite often applied, especially by
international arbitral tribunals. But these are also rather unwieldy, and positive proof of their
existence and application can be somewhat complicated. Nobody can possibly compare all
domestic legal systems. A practical solution is often found by studying some leading
representative systems of law, derived from different legal cultures such as civil law, common
law and Islamic law, often with the help of secondary publications in accessible languages.

Compared with domestic law, international law is relatively under-developed and patchy, though
in the last fifty years it has developed several important new specialized areas. International courts
and tribunals have always borrowed concepts from domestic law if they can be applied to
relations between states, and by this means have developed international law by filling gaps and
strengthening weak points. Such concepts are chiefly legal reasoning and analogies drawn from
private law, such as good faith and estoppel.