CHAPTER 1 Introduction - States channel the pursuit of most of their individual
interests through multilateral institutions
The Law of Nations (Brierly)
Austinian Handicap (Is International law law?)
- Law of nations is necessarily determined by that of the
society within which it operates, and neither can be
understood without the other
- When there is a breach of international law the
defense has always been to attempt to prove that no
rule has been actually violated and not on the
morality of the action
Sir Frederick Pollock said that the essential condition for the
existence of IL are the existence of a political community and
recognition by the members of the settled rules binding upon
them in that capacity
- Imperative character of law is felt so strongly and
obedience to it has become so much of a matter of
habit within a highly civilized state that national law
developed a machinery of enforcement which
Law Habit
generally works smoothly though never so smoothly as
to make breaches impossible
Shortcomings of the present system
- Rudimentary character of the institutions which exists
for the making and application of the law
- Narrow restrictions on its range
- No legislature to keep abreast of new needs in the
international society
- No executive power to enforce the law
- Certain administrative bodies have been created are
far from being adequate for the mass business which
ought to be treated today as of international concern
- Convenient machinery for arbitration of disputes and
standing court of justice but the range of action is
limited because resort to them is not compulsory
BUT the restricted range of international law is the counterpart
of the wide freedom of independent action which states
claim by virtue of their sovereignty
- Law will never play a really effective part of IR until it
can annex to its own sphere some of the matters which
at the present lies within their domestic jurisdictions
- It is not the nature of any law to provide
mathematically certain solutions of problems
which may be presented to ituncertainty cannot be
eliminated from law
- Difficulty of formulating the rules of international law
with precision is a necessary consequence of the
kinds of evidence upon which we have to rely in
order to establish them
(International attitude to the legality of war) The success or
failure of international law can only be determined based upon
what we assume to be its aim
- International law has not failed to serve the purpose for
which the states have chosen to use it
Problem of International Law is the reluctance of the states to
surrender their sovereignty (De Visscher)
- There will be no international community so long as
the political ends of the State overshadow the
human ends of power
Lotus principle (states are only bound by their express consent)
are now giving way to a more communitarian and more highly
institutionalized international law
- John Austin defines that laws (properly so-called) as
commands and positive law which is regarded as the
appropriate matter of jurisprudence as the commands
of the sovereign
o Sovereign person who received the habitual
obedience of the members of an independent
political society and who, in turn, did not owe
such obedience to any other person
- Rules of international law did not qualify as rules of
positive law by this test and not being commands
of any sort, were placed by Austin in the category of
laws improperly so-called
- Although IL is not law under Austins test, most
international lawyers would at least dispute that
the test is more helpful than certain others
- In terms of the number, as opposed to political
importance, of the occasions on which international
law is complied with/honored more than breached
o Wars, breaches of treaties, and oppression of
the weak by the strong are the headlines of
the daily press and of the history textbooks
- John Bassett Moore has recorded his observation that
as a whole, international law is as well observed as
national law
o Those who make light of treaty commitments
in general seem to ignore the fact that vast
majority of such engagements are
continuously, honestly, and regularly
observed even under adverse conditions
- While there is clearly some merit to this law habit view,
some States committing breaches or violations of
international law while condemned by the United
Nations has not been brought to answer for its
violations of its obligations
Politics among Nations (Morgenthau)
- Great majority of rules of international law are
generally observed by all nations without actual
compulsion
o Generally, the interest of all nations
concerned to honor their obligations under
international law
- Nation will hesitate to infringe upon the rights of foreign
diplomats residing in its capital for it has an interest
identical with the interests of all other nations
- A nation will be reluctant to disregard its obligations
under a commercial treaty since the benefits that said
nation expect are complementary to the expectations
of the other party
- Most rules of international law formulate in legal terms
identical or complementary interests
o Majority of rules of international law are
generally unaffected by the weakness of its
system of enforcement, for voluntary
compliance prevents problem of enforcement
from arising altogether
The Foundations of the Authority of International
Law and the Problem of Enforcement (Fitzmaurice)
- Enforceability is a necessary characteristic of any
system of law and international law possesses this
cdjmangaser
 characteristic even if only in a rough and rudimentary
form
[Law is] a body of rules for human conduct within a community
which, by common consent of this community shall be enforced
by external power. (Oppenheim)
Law is a coercive order providing socially organized sanctions
and this can be clearly distinguished from a religious order on
the one hand and merely a moral order on the other. (Kelsen)
- As a coercive order, law is that specific social
technique which consists of attempts to bring
about the desired social conduct of men through a
threat of a measure of coercion which is to be taken in
case of legally wrong conduct
o Decentralized societies enforcement of law
is accomplished through the application of the
principle of self-help
The Self-Help Doctrine
- International law is true law because, broadly speaking,
it provides sanctions (adoption of reprisals, wars, use
of force) and makes the employment of these sanctions
lawful as a counter-measure against a legal wrong
but unlawful in all other cases
o Doctrine of self-help is generally frowned
upon
- The real foundation of the authority of international law
resides similarly in the fact that States making up the
international society recognize it as binding upon
them and as a system that ipso facto binds them as
members of the society irrespective of their own wills
- Self-help is the result of the general absence of a
compulsory judicial or arbitral remedies and the
decentralized nature of the international
community
o It is the option that is most likely to be
available to a state when faced with a breach
of international obligation owed to it by
another state
- May take the form of countermeasures or acts of
retorsion
o Countermeasure act not involving the use
of armed force that is contrary to international
law but that is rendered lawful as
proportionate response to a prior illegal act by
another state and is intended to induce
compliance with its international law
obligations
o Retorsion acts, although unfriendly are not
illegal under international law
Unfriendly acts in response to both
unlawful acts and lawful but
unfriendly acts
- Sanctions organized through the international
community UN General Assembly
o But are subject to the veto of the Security
Council
- National interest of the defaulting state in
continued participation must be at least as great as
that in the court of action that caused it to default
for such a sanction to be effective. (Friedman)
- Effective way of enforcing international law is through
the national court, whose judgments are backed by the
power of the State
- Consider the activities of NGOs (Greenpeace,
Amnesty International, etc.) must also be considered in
the imposition of sanctions
The Development of International Law
A. Generally
- Modern international law has its origins in Europe
- Resort to war has been made illegal and a system of
collective enforcement of peace and security has been
initiatednot very successful through the UN in order
to replace self-help
- Change in the balance of interests and values in
the world resulting from the independence since
1945 of colonial and similar territories has had an
effect in shaping or reshaping international law
rules.
o Oppenheims doctrine that states are the sole
subject of international law is slowly
abandoned
- Development of international law of human rights and
international environmental law are notable examples
of the more community-minded kind of law
- Science added 2 more territorial areas: outer space
and deep sea bed
B. Impact of developing States
How Nations Behave (Henkin)
- Reasons why new nations accept international law is
because they came into an established system
accepted by all nations including revolutionary
governments and many small powers which had
supported their struggle for self-determination
o Acceptance into that society as an
independent equal was the proof and
crown of their successful struggle
- Explosion of new states made it yet more difficult to
make new law
o Multilateral conventions have become the
principal form of general law-making because
experience taught them that universality will
be hard to come by
o Customary law cannot long retain validity if a
substantial number of states reject it
- 3rd world has succeeded where it was united and
determined
C. The end of the Cold War
International Law: Politics and Values (Henkin)
- International system substantially changed from what it
was a century ago.
- World order is shaped by the different changes which
the world has undergone (demise of Communism,
disintegration of the Soviet empire, fragmentation of
the Soviet Union, etc)
- International political system is no longer characterized
by intense bipolarism and moved into a field of more
fluid political forces
- New array of forces in the system (US as the sole
superpower, 3rd world having solidarity forged by a
common colonial history and common problems of
underdevelopment) will surely have an effect on the
content of international law and on compliance with the
law
cdjmangaser