Module 1, Chapter 1: The Nature and Development of International Law  international comity - practices such as saluting the flags

uch as saluting the flags of foreign warships

at sea, which are implemented solely through courtesy and are not regarded as
Law legally binding
 International morality - branch of ethics, this does not mean however, that
 the idea that order is necessary and chaos inimical to a just and stable
international law can be divorced from its values.
existence
 a framework of principles LAW AND POLITICS IN THE WORLD COMMUNITY
 the element which binds the members of the community together in their
adherence to recognized values and standards Ordinary or Domestic Law (Principal characteristics)
 permissive - in allowing individuals to establish their own legal relations
with rights and duties  the existence of a recognized body to legislate or create laws
 eg: the creation of contracts  a hierarchy of courts with compulsory jurisdiction to settle disputes over such
 coercive - as it punished those who infringe its regulations laws
 consists of a series of rules regulating behavior and reflecting, to some  an accepted system of enforcing those laws
extent, the ideas and preoccupations of the society within which it  has legislature, judiciary and executive
functions
International Law (Characteristics)
International Law
1. has no legislature
 important difference: principal subjects are nation states, not individual
- eg. The General Assembly of the United Nations comprising delegates from all the
citizens member states exists, but its resolutions are not legally binding save for certain of the
 divided into 2:
organs of the United Nations for certain purposes
1. Private International Law (conflict of laws)
2. no system of courts
 deals with cases within particular legal systems, in which foreign elements
- eg. The International Court of Justice does exist at The Hague but it can only decide
obtrude, raising questions as to the application of foreign law or the role of
cases when both sides agree and it cannot ensure that its decisions are complied with.
foreign courts
3. No executive or governing entity
2. Public International Law (International law)
- eg. The Security Council of the United Nations, which was intended to have such a
 is not simply an adjunct of a legal order, but a separate system altogether
role in a sense, has at times been effectively constrained by the veto power of the five
 law covers relations between states in all their myriad forms, from war to
permanent members (USA; USSR, now the Russian Federation; China; France; and
satellites and from trade to human rights
the United Kingdom)
 regulates the operations of the many international and regional institutions
 Universal or general - the stipulated rules bind all the states (or practically all *John Austin (Theory of Law)
depending upon the nature of the rule
 regional - whereby a group of states lined geographically or ideologically may - based upon the notion of a sovereign issuing a command backed by a sanction or
recognize special rules applying only to them punishment

The rules of int'l law must be distinguished from: - int'l was relegated under the category of positive morality.
- however his concept has been criticized for oversimplifying and even confusing the absurd result that the more force is controlled in international society,
true nature of law within a society and for over emphasizing the role of the sanction the less legal international law becomes.
within the system by linking it to every rule. - If states do not feel the necessity to act in accordance with such rules,
then there does not exist in any system of international law worthy of
the name.
The Role of Force THE INTERNATIONAL SYSTEM
There is no unified system of sanctions in international law in the sense that there is  While the legal structure within all but the most primitive societies is
in municipal law, but there are circumstances in which the use of force is regarded hierarchical and authority is vertical
as justified and legal. - The law is above individuals in domestic systems, but international
law only exists as between the states. Individuals only have the choice
 Eg. Within the United Nations system, sanctions may be imposed by the
as to whether to obey the law or not. They do not create the law. That
Security Council upon the determination of a threat to the peace, breach of the
is done by specific institutions.
peace or act of aggression.
 the international system is horizontal
 Such sanctions may be economic, for example those proclaimed in 1966
- consisting of over 190 independent states, all equal in legal theory (in
against Rhodesia, or military as in the Korean war in 1950, or indeed both, as
that they all possess the characteristics of sovereignty) and recognizing
in 1990 against Iraq.
no one in authority over them
 Coercive action within the framework of the UN is rare because it requires co-
- In international law, on the other hand, it is the states themselves that
ordination amongst the five permanent members of the Security Council and
create the law and obey or disobey it.
this obviously needs an issue not regarded by any of the great powers as a
threat to their vital interests.
 International law is primarily formulated by international agreements,
 Self help to resort to force to defend certain rights is characteristic of primitive
which create rules binding upon the signatories, and customary rules, which
systems of law with blood-feuds, but in the domestic legal order such
are basically state practices recognized by the community at large as laying
procedures and methods are now within the exclusive control of the
down patterns of conduct that have to be complied with.
established authority.
 However, it may be argued that since states themselves sign treaties and
- States may use force in self-defense, if the object of aggression, and
engage in action that they may or may not regard as legally obligatory,
may take action in response to the illegal acts of other states.
international law would appear to consist of a series of rules from which
- In such cases the states themselves decide whether to take action and,
states may pick and choose.
if so, the extent of their measures, and there is no supreme body to rule
 Heart of the system: creation and preservation of international peace and
on their legality or otherwise, in the absence of an examination by the
justice.
International Court of Justice, acceptable to both parties, although
international law does lay down relevant rules.
- To see the sanctions of international law in the states’ rights of self-
defense and reprisals is to misunderstand the role of sanctions within a
system because they are at the disposal of the states, not the system
itself.
- Neither must it be forgotten that the current trend in international law
is to restrict the use of force as far as possible, thus leading to the
Chapter 2: International Law Today intergovernmental institutions, and of these the most important by far is the
United Nations.
I. The Expanding Legal Scope of International Concern  International organizations have now been accepted as possessing rights and
 Major Problems: 1. To determine when and how to incorporate new standards duties of their own and a distinctive legal personality.
of behavior and new realities of life into the already existing framework.  the United Nations was a subject of international law and could enforce its
- so that, on the one hand, the law remains relevant and, on the other, the rights by bringing international claims.
system itself is not too vigorously disrupted  regional organizations have added to the developing sophistication of
- Changes that occur within the international community can be international law by the insertion of ‘regional–international law sub-systems’
momentous and reverberate throughout the system within the universal framework and the consequent evolution of rules that
 International law reflects first and foremost the basic state-oriented bind only member states
character of world politics and this essentially is because the state became
over time the primary repository of the organized hopes of peoples, whether
for protection or for more expansive aims. II. Modern Theories and Interpretations
 Positive Law
 State policies and balances of power, both international and regional, are a - Law as is exists should be analyzed empirically, shorn of all ethical
necessary framework within which international law operates, as indeed are elements.
domestic political conditions and tensions. - Kelsen’s Pure Theory of Law
 Law mirrors the concern of forces within states and between states.  Law was to be regarded as a normative science,that is, consisting of
 The system therefore has to be certain enough for such goals to be rules which lay down patterns of behaviour.
ascertainable, and flexible enough to permit change when this becomes  Such rules, or norms, depend for their legal validity on a prior norm
necessary due to the confluence of forces demanding it. and this process continues until one reaches what is termed the basic
 International law has extended itself to include individuals, groups and norm of the whole system.
international organizations, both private and public, within its scope. It has
 This basic norm is the foundation of the legal edifice, because rules
also moved into new fields covering such issues as international trade,
which can be related back to it therefore become legal rules.
problems of environmental protection, human rights and outer space
 For Kelsen international law is a primitive legal order because of its
exploration.
lack of strong legislative, judicial and enforcement organs and its
 The growth of positivism in the nineteenth century had the effect of focusing
consequent resemblance to a pre-state society. It is accordingly
the concerns of international law upon sovereign states.
characterised by the use of self-help.
- They alone were the ‘subjects’ of international law and were to be
contrasted with the status of non-independent states and individuals as  For Kelsen, the basic norm is the rule that identifies custom as the
‘objects’ of international law. source of law, or stipulates that ‘the states ought to behave as they
- They alone created the law and restrictions upon their independence customarily behaved.
could not be presumed. - Pacta Sunt Servanda
 Together with the evolution of individual human rights, the rise of - agreements must be carried out in good faith and upon that rule is
international organizations marks perhaps the key distinguishing feature of founded the second stage within the international legal order.
modern international law. - This second stage consists of the network of norms created by
 In fact, international law cannot in the contemporary era be understood international treaties and conventions and leads on to the third stage
without reference to the growth in number and influence of such which includes those rules established by organs which have been set
 up by international treaties, for instance, decisions of the International  Personality in international law necessitates the consideration of the
Court of Justice. interrelationship between rights and duties afforded under the international
 The problem with Kelsen’s formulation of the basic norm of international law system and capacity to enforce claims.
is that it appears to be tautological: it merely repeats that states which obey
rules ought to obey those rules. Subjects of International Law
 Nevertheless, it is a model of great logical consistency which helps explain,
particularly with regard to national legal systems, the proliferation of rules and 1. State
the importance of validity which gives, as it were, a mystical seal of approval - “States remain by far the most important legal persons.”
to the whole structured process. It helps illustrate how rule leads to rule as
- Creation of STATEHOOD
stage succeeds stage in a progression of norms
a. The state is commonly defined as a community which consists of a
 forming a legal order.
 Another important element in Kelsen’s interpretation of law is his extreme territory and a population subject to an organized political
‘monist’ stance. International law and municipal law are not two separate authority and that such a state is characterized by sovereignty.
systems but one interlocking structure and the former is supreme. Municipal (Opinion No.1, Arbitration Commission of the European
law finds its ultimate justification in the rules of international law by a process Conference on Yugoslavia).
of delegation within one universal normative system b. A state should have legal personality in order to be a subject of
international law.
 Permanent population
 Defined territory
Module 3 Subjects of International Law
 Government
Subject of Law  Sovereignty
 The capability to enter into the relationship between state;
 Entity capable of possessing international rights and duties  Recognition by other states
 Having the capacity to maintain its rights by bringing international claims. c. The elements of statehood are best described as criteria for the
identification of States because those elements help to distinguish a
Subjects of International Law
State from any other collective entity.
 Entities or elements; - Montevideo Convention on Rights and Duties of States
 Have a capability to conduct legal acts in the field of international law a. Permanent Population
 People defined:
 Possess rights and obligation under international law
 An aggregate of individuals of both sexes
Legal Personality  Living together as a community despite racial or
cultural difference
 Having an active legal personality under international law means being able to
 Sufficient in number to maintain and perpetuate
participate in the creation of new rights and obligations under international
themselves
law.
 Must live in a stable, political community
b. Defined Territory overwhelming the scale of international recognition is in
 Must have control over a certain area any given situation, the less may be demanded in terms of
 Need not be exactly defined by metes and bounds, so long the objective demonstration of adherence to the criteria.
as there exists a reasonable certainty of identifying it Conversely, the more sparse international recognition is,
 Need not exactly be large in are the more attention will be focused upon proof of actual
c. Government adherence to the criteria concerned.
 Organized, exercising control over and capable of 2. International Organization
maintaining law and order within the territory. - Organization whose members consist of states
 It can be held internationally responsible for the acts of its - Have a significant membership
inhabitants. - Have a structure of organization
 Identity of the state is unaffected by changes in 3. Corporation
government. 4. Individual
d. Sovereignty - a person or citizen is a subject of international law.
 Capacity to Enter into Relations with other States - The question of the status in international law of individuals is closely
 Freedom from outside control in conducting foreign bound up with the rise in the international protection of human rights.
and internal affairs. - Individuals as a general rule lack standing to assert violations of
 The essence: independence. international treaties in the absence of a protest by the state of nationality,
e. State Recognition? although states may agree to confer particular rights on individuals which
 Constitutive Territory will be enforceable under international law, independently of municipal
 It is only through recognition that a state comes law.
into being under international law. - Treaties did not as such create direct rights and obligations for private
 Declaratory Theory individuals, although particular treaties could provide for the adoption of
 Once the factual criteria of statehood have been individual rights and obligations enforceable by the national courts where
satisfied, a new state exists as an international this was the intention of the contracting parties.
person, recognition becoming merely a political and - The question of the legal personality of individuals under international law
not a legal act in this context. extends to questions of direct criminal responsibility also.
 In many situations, expressed requirements for recognition 5. Belligerents
may be seen as impacting upon the question of statehood. - The group of people makes an action to separate themselves from the
 A discretionary act, except when the emergence of the State sovereignty of a state.
results from a grave breach of international law. - They possess sizeable portion of national territory and real authority.
 A declaratory of the factual existence of a State. - Conditions for Recognition of Belligerency (absence of one element
 There is also an integral relationship between recognition makes it a state of insurgency):
and the criteria for statehood in the sense that the more a. Organized civil government
b. Rebels occupy a substantial portion of the territory
 c. Conflict is serious and outcome is uncertain multinational corporations, national liberation movements, and others. It
d. Rebels are willing to observe the laws of war all depends on the conferral of rights and duties by States in each
- National Liberation Movements particular case.
a. “observer status” - Recognition of States rests on two competing theories. The first contends
b. “take part in relevant debates without a vote” that recognition is irrelevant to statehood (declaratory), whereas the
c. The possibility of observer status in the UN and related organs for second argues that it is a solid criterion of statehood (constitutive). Besides
NLMs appears to have been affirmatively settled in international recognition of States, the recognition of governments also exists as a
practice. practice, although it is less frequent in the contemporary era.
d. The question of international personality, however, is more - The requirement of independence in the creation of new States
complex and more significant, and recourse must be made to state presupposes that a government controls the population and territory of the
practice. aspirant State effectively. However, a lesser degree of effectiveness will
be tolerated by international law in certain situations (e.g. the exercise of
KEY POINTS TO REMEMBER the right to self-determination for colonized peoples). This right may
- A subject of the law is an entity capable of possessing international rights remedy particular difficulties that an aspirant State would have had in
and duties and having the capacity to maintain its rights by bringing satisfying the Montevideo criteria.
international claims. Reparations Case (1949) ICJ Rep 174. - The declaratory theory is the one mostly accepted. Nonetheless,
- All States possess international legal personality as a result of the principle recognition is important in fulfilling the Montevideo criterion that States
of sovereign equality. It is often said that they possess ‘original’ should have the capacity to enter into relations with each other. This was
personality. dictated by the frequent dictatorial coups that occurred in the developing
- The four criteria of statehood in the Montevideo Convention have long world and the embarrassment of recognizing governments that were
been recognized as being part of customary law. The criteria of eventually unpopular and short lived.
government and foreign relations capacity should be distinguished even - Modern international law favours a modified declaratory theory of
though the latter seems like a natural extension of the former. recognition. It appreciates that established States do exert a degree of
- Although numerous entities (ie States, individuals, international influence when political entities are seeking to become States, if those
organizations etc) may possess international legal personality, they do not aspirant States have difficulty in satisfying the Montevideo criteria. This
all enjoy rights and duties in the same degree. For example, States can will be especially important in cases of secession and State dissolution.
make treaties and use armed force to defend themselves, whereas Consequently, recognition performs an evidential function in borderline
individuals cannot. Therefore, international legal personality should be cases.
viewed from the point of view of capacity in each and every case. - The requirement of independence in the creation of new States
- The primary subjects of international law are States, because they make presupposes that a government controls the population and territory of the
the law and it is they that confer rights and duties on other actors. Some aspirant State effectively. However, a lesser degree of effectiveness will
degree of international legal personality is enjoyed by international be tolerated by international law in certain situations (e.g. the exercise of
organizations, individuals, nongovernmental organizations, such as the right to self-determination for colonised peoples). This right may
 remedy particular difficulties that an aspirant State would have had in
satisfying the Montevideo criteria.
- International organizations possess rights and duties from their founding
treaty as well as under general international law. The Reparations case
made sure that organizations enjoy implied powers in order to fulfil
functions and tasks assigned to them. Organizations have a personality that
is distinct from that of their member States.
- It is now accepted that individuals have rights at the level of international
law. However, these rights are dependent on particular States having given
their consent to the rights in question. For example, an individual cannot
be said to have a particular right contained in a multilateral treaty unless
his or her State has ratified that treaty. So individuals may have indirect
international legal rights. Further, whether that right can be enforced
depends on the institutional machinery and procedures which accompany
the right in question.