PIL – CH I: NATURE OF IL 05/27/19

What is international law IL

- body of rules which regulates the community of nations (Suarez)
- body of rules and principles of action which are binding upon civilized states in their
relations with one another
- law dealing with the conduct of states ans international orgs (IOs) with their relations
inter se (among or between them) as well as some of their relations with persons
(natural or juridical)
 Past: States as sole actors
o State – community of persons more or less numerous,
permanently occupying a fixed territory, and possessed of an
independent government, organized for political ends, to
Scope of IL which a great body of inhabitants render habitual obedience
 Past: IL regulates state relations in diplomatic matters and conduct of
war
 Current Actors: States, IOs, indivs

- New subj matters (changing social and political principles, assumption of new
roles of IOs)
- New subjects of IL recognized (non-Western States recognized in the
community of nations)

Factors affecting such:

1. Technology
2. (multiplication )Number of states – having diff backgrounds

Topics covered:
1. Regulation of space expeditions
Is IL law? 2. Division of ocean floor
3. Protection of human rights
4. Management of int’l financial system
5. Regulation of the environment

Premise: IL is commonly disregarded. Sovereignty embodies an individualist game

- There is NO law binding sovereign states.
- There exists NO int’l legis body
o Gen Ass of UN (+its resolutions)= generally NOT BINDING on anybody
- There exists NO int’l exec body
o Sec Council – intended as such but not effective enough bc of veto
power
o ICJ – can bind states only when they consent

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 - National interest is prioritized over IL
- IL enforcement is a problem
o No assured procedure for identifying violation
o Powers of UN refer largely to acts of aggression/ threat to peace and
there are many that are not of this nature. UN can only censure

NOTE:
 Reality is States are bond by rules not promulgated by themselves. There is
also the principle of social interdependence and general interest
 “It is probably the case that almost all nations observe almost all principles of
IL and almost all of their obli almost all of the time” - Henkin
 *States are rational enough to respect the law because of possible
consequences of defiance either to oneself or to the larger society

Theoretical basis for IL as law Theories:

1. John Austin: Command Theory
John Austin – renown legal  Law consists of commands originating from a sovereign and back up by
philosopher threats of sanctions if disobeyed
 Discredited (In reality):
o Nations see IL as principles for free and orderly interaction
(not command)
o IL is NOT law; treaties or custom does NOT come or arise from
command
2. Consensual Theory
 Binding force comes from consent of states
 Ex. Treaties – expression of consent; Custom – voluntary adherence to
common practice, still expression
 In reality, many binding rules do not arise out of consent
3. Natural Law Theory
 Law is derived by reason from the nature of man
 IL is an application of natural reason to the nature of the state-person
 Finds little support now but Custom and GAP are expressions of what
was traditionally NL
4. Dissenters: No basis
 “Combination of politics, morality and self-interest hidden under the
smokescreen of legal language”
5. Bernas: Pragmatic
 IL is law bc it is seen as such by States and other subjects of
international law

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PIL v Conflict of Laws PIL – governs the relationships between and among states and also their relationships
with IOs and indiv persons

Conflict of laws – domestic law dealing with cases of foreign law intruding in the
domestic sphere where there a questions of the applicability of foreign law or the role
of foreign courts
Historical Development

Ancient to League of Nations Ancient IL

- Exchange of diplomatic emissaries, peace treaties in the world of ancient
Romans (and earlier)
- Jus gentium (law of nations –customary) is seen as common law to all men
o There is evidence of treaties concluded between Romans, Syrians and
Spartans
Modern IL
- Began with the birth of nation states (Medieval Age)
- Governing principles were derived from Roman Law or Canon Law
o Hugo Grotius – father of modern IL; Dutch; author of De Jure Belli ac
Pacis; what he called “law of nations” was called by Jeremy Bentham
as IL (British philo)

Natual Law Proponents

1. Aberico Gentili – Oxford Prof of Roman Law; author of De Jure Belli
2. Francisco de Vitoria – Spanish theologian
3. Francisco Suarez – Jesuit theologian
4. Samuel Pufendorf - German author of De Jure Naturae Gentium
5. Emmerich de Vattel – Swiss author of The Law of Nations

Positivist Approach
- Interpreted Il on the basis of what actually happened in the conflict between
states (not based on concepts founded on reason)
- Notion of Sovereignty = Command Theory
- Significant milestones:
1. Peace of Westphalia
- Ended the Thirty Years War (1618-1648)
- Estabilished a treaty based framework for peace cooperation
- Pacta sunt servanda arose
2. Congress of Vienna
- Ended the Napoleonic Wars
- Created a sophisticated system of multilateral political and
economic cooperation

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 3. Covenant of the League of Nations
- Included the Treaty of Versailles, ended WWI
- League of Nations was born
o Consisted of 43 states including 5 British dominions (India, Canada,
South Africa, Australia, New Zeland)
o US did not join

End of WWII to end of Cold - League of Nations FAILED to prevent WWII

War - Formulation of new avenue for peace
- UN was founded (1945)
o Marked the shift of power away from Europe and the beginning of a
truly universal institution
o Universalization was advanced by decolonization = expansion of UN
- Rise of 3 major groups of states:
1. Western States
- Some satisfied with status quo; others more open to Third World
demands and supported social and legal changes
- Insisted int’l legis be:
i. (legal provisions be) Clear and precise
ii. Any substantive rule be accompanied by an
implementation mechanism, that can spot and correct
violations
2. Socialist
- Lead by Soviet Union; formed the socialist camp
- Sought to avert Western intrusion into domestic affairs
- Still sought relatively good relations with West for economic and
commercial interest/ interchange
- Also sought to convert developing nations to their ideology
3. Dev Countries
- Majority
- Consisted of former colonies suffering from underdevelopment
together with newly industrializing countries (Philippines,
Malaysia, Thailand, Singapore, south Korea) which earned their
independence through armed or political struggle while remaining
under the influence of Western or socialist ideas

- Cold War – maintenance of peace thru balancing of powers between US and

Soviet Union

End of Cold War - Dissolution of Soviet Union

- Re-emergence of IR based on multiple sources of power and not mainly on
ideology
- Baltic States were restored to statehood. Yugoslavia collapsed, fragmented.
Russion Federation did not inherit Sov Union’s position as a superpower.

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PIL – BRIEF HISTO…
PIL – CH II: SOURCES OF IL
CH II: SOURCES OF PIL
What sources are
Premise:
 no exec or legis body
nor system of courts
with compulsive
power todecide what
the law is
 no centralized
repository of IL
ARTICLE 38 – ICJ STATUTE
1. 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. subject to the provisions of
Article 59, 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.
2. This provision shall not prejudice the
power of the Court to decide a case ex
aequo et bono, if the parties agree thereto.
ARTICLE 59 – ICJ STATUTE
The decision of the court has no binding
force except between the parties and in
respect to a particular case
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- US as leading political and ideological Western State; acts as world policeman
(selective as dictated by self-interest) and global mediator
- Socialist countries areno longer united; dependent on support of Western
states.
- Dev countries veered away from ideological orientation; towards market
orientation; fighting poverty and *“backwardness”
- UN seems to have declined as Int’l agency for maintenance of peace.
Classification:
1. Formal
- Various processes by which rules come into existence
2. Material
- Concerned with substance and content of obligation
- Identifies what these obligations are
- “Evidence of IL”
Doctrine of Sources
- Lays down conditions for verifying and ascertaining the existence of legal
principles
- Verification is inductive and positivistic
o Process of finding what laws the states have created and what laws
they are willing to place themselves under
o Manifestation of individualism in IL
Conditions
- Observable namifestation of the wills of States as revealed in the processes by
which norms are formed (treaty and state practice )
ARTICLE 38(1) of Statute of ICJ
- Most widely accepted statement of sources BUT DOES NOT speak of sources;
only HOW conflicts brought to it are resolved
- Declaration of states that these are the laws they are willing to be bound
RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES (pp. 9-
10)
SOURCES:
1. Custom
2. Treaties and other international agreements
3. Generally recognized principles of law
4. Judicial decisions
5. Teachings of highly qualified and recognized publicists
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1. Custom Customary IL – a general and consistent practice of states followed by them from a
sense of legal obligation

2 basic elements:
1. Material factor – how states behave (practice of states, actual behavior or
usus)
- Elements:
i. Duration (diurtunitas)
 can be short or long
 Ex of long: exemption of fishing vessels from capture
as price of war (The Paquete Havana)
 Even if short, it will not exclude the possibility of a
practice maturing into custom provided 1) State
practice have been extensive and uniform; 2) occurred
in such a way as to show general recognition tht a rule
of law or legal obli is involved
 Not the most important element
ii. Consistency/Uniformity
 Continuity and repetition
iii. Generality
- ii. and iii. need not be complete but substantial
- inconsistent act is breach not indication of recognition of new rule
2. Psychological or substantive factor – why they behave the way they do

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