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CH 1 - THE NATURE AND DEVELOPMENT OF International law has no legislature.

INTERNATIONAL LAW
The General Assembly of the United Nations
Law is that element which binds the members of the comprising delegates from all the member states
community together in their adherence to exists, but its resolutions are not legally binding save
recognised values and standards. It is both for certain of the organs of the United Nations for
permissive in allowing individuals to establish their certain purposes.
own legal relations with rights and duties, as in the
There is no system of courts. The International Court
creation of contracts, and coercive, as it punishes
of Justice does exist at The Hague but it can only
those who infringe its regulations
decide cases when both sides agree and it cannot
Municipal vs International ensure that its decisions are complied with.

…the important difference that the principal Above all there is no executive or governing entity.
subjects of international law are nation-states, not The Security Council of the United Nations, which
individual citizens. There are many contrasts was intended to have such a role in a sense, has at
between the law within a country (municipal law) times been effectively constrained by the veto
and the law that operates outside and between power of the five permanent members (USA; USSR,
states, international organisations and, in certain now the Russian Federation; China; France; and the
cases, individuals. United Kingdom).

DIVISIONS THE ROLE OF FORCE

International law itself is divided into conflict of laws There is no unified system of sanctions in international
(or private international law as it is sometimes called) law in the sense that there is in municipal law, but
and public international law (usually just termed there are circumstances in which the use of force is
international law). regarded as justified and legal.

CONFLICT OF LAWS OR PRIVATE INTERNATIONAL LAW Within the United Nations system, sanctions may be
deals with those cases, within particular legal imposed by the Security Council upon the
systems, in which foreign elements obtrude, raising determination of a threat to the peace, breach of
questions as to the application of foreign law or the the peace or act of aggression.
role of foreign courts.
Such sanctions may be ECONOMIC, for example
PUBLIC INTERNATIONAL LAW covers relations those proclaimed in 1966 against Rhodesia, OR
between states in all their myriad forms, from war to MILITARY as in the Korean war in 1950, OR BOTH, as in
satellites, and regulates the operations of the many 1990 against Iraq.
international institutions.
Coercive action within the framework of the UN
NOT INTERNATIONAL COMITY. The rules of requires co-ordination amongst the five permanent
international law must be distinguished from what is members of the Security Council and needs an issue
called international comity, or practices such as not regarded by any of the great powers as a threat
saluting the flags of foreign warships at sea, which to their vital interests.
are implemented solely through courtesy and are
SELF-HELP
not regarded as legally binding.
States may use force in self-defence, if the object of
aggression, and may take action in response to the
LAW AND POLITICS IN THE WORLD COMMUNITY illegal acts of other states. In such cases the states
themselves decide whether to take action and, if so,
principal characteristics of ordinary or domestic law
the extent of their measures, and there is no supreme
 existence of a recognised body to legislate body to rule on their legality or otherwise, in the
or create laws absence of an examination by the International
 a hierarchy of courts with compulsory Court of Justice, acceptable to both parties,
jurisdiction to settle disputes over such laws although international law does lay down relevant
 accepted system of enforcing those laws rules.

INTERNATIONAL LAW DOES NOT FIT THIS MODEL. THE INTERNATIONAL SYSTEM
While the legal structure within all but the most to precedent, international agreements and
primitive societies is hierarchical and authority is even the opinions of juristic authors. Claims
vertical, the international system is horizontal, are pursued with regard to the rules of
consisting of over 190 independent states, all equal international law and not in terms of, for
in legal theory (in that they all possess the example, morality or ethics.
characteristics of sovereignty) and recognizing no
WHEN A STATE WITHDRAWS CONSENT TO ABIDE
one in authority over them.
The state’s reversal of its agreement to a rule does
The law is above individuals in domestic systems, but
not render that rule optional or remove from it its
international law only exists as between the states.
aura of legality. It merely places that state in breach
However it may be argued that since states of its obligations under international law if that state
themselves sign treaties and engage in action that proceeds to act upon its decision. Indeed, the
they may or may not regard as legally obligatory, principle that agreements are binding (pacta sunt
international law would appear to consist of a series servanda) upon which all treaty law must be based
of rules from which states may pick and choose. cannot itself be based upon consent.

MAY CAUSE STATES TO OBEY INTERNATIONAL LAW: While states from time to time object to particular
rules of international law and seek to change them,
THE ELEMENT OF RECIPROCITY
no state has sought to maintain that it is free to
States quite often do not pursue one object to the system as a whole. Each individual
particular course of action which might bring state, of course, has the right to seek to influence by
them short-term gains, because it could word or deed the development of specific rules of
disrupt the mesh of reciprocal tolerance international law, but the creation of new customary
which could very well bring long-term rules is not dependent upon the express consent of
disadvantages. For example, states each particular state.
everywhere protect the immunity of foreign
THE FUNCTION OF POLITICS
diplomats for not to do so would place their
own officials abroad at risk. Politics in world affairs is much more complex and
difficult to unravel, and signals a return to the earlier
This constitutes an inducement to states to
discussion as to why states comply with international
act reasonably and moderate demands in
rules.
the expectation that this will similarly
encourage other states to act reasonably Power politics stresses competition, conflict and
and so avoid confrontations. supremacy and adopts as its core the struggle for
survival and influence.
ADVANTAGES OR REWARDS
International law aims for harmony and the
Another significant factor is the advantages,
regulation of disputes. It attempts to create a
or ‘rewards’, that may occur in certain
framework, no matter how rudimentary, which can
situations from an observance of
act as a kind of shock-absorber clarifying and
international law. It may encourage friendly
moderating claims and endeavoring to balance
or neutral states to side with one country
interests.
involved in a conflict rather than its
opponent, and even take a more active role HISTORICAL DEVELOPMENT
than might otherwise have been the case. In
many ways, it is an appeal to public opinion Early origins
for support and all states employ this tactic.
Around 2100 BC, for instance, a solemn treaty
CONSTANT FORMULATION OF INTERNATIONAL was signed between the rulers of Lagash and
BUSINESS Umma, the city-states situated in the area
known to historians as Mesopotamia. It was
A further element worth mentioning in this
inscribed on a stone block and concerned the
context is the constant formulation of
international business in characteristically establishment of a defined boundary to be
legal terms. Points of view and disputes, in respected by both sides under pain of
particular, are framed legally with references alienating a number of Sumerian gods.
Over 1,000 years later between Rameses II of It was totally unable to provide a relevant
Egypt and the king of the Hittites for the background for an expanding, developing
establishment of eternal peace and nation. This need was served by the creation
brotherhood. and progressive augmentation of the jus
gentium. This provided simplified rules to govern
Since that date many agreements between the
the relations between foreigners, and between
rival Middle Eastern powers were concluded,
foreigners and citizens.
usually aimed at embodying in a ritual form a
state of subservience between the parties or The progressive rules of the jus gentium
attempting to create a political alliance to gradually overrode the narrow jus civile until the
contain the influence of an over-powerful latter system ceased to exist. Thus, the jus
empire. gentium became the common law of the
Roman Empire and was deemed to be of
The role of ancient Israel must also be noted. A
universal application.
universal ethical stance coupled with rules
relating to warfare were handed down to other Natural Law. One of the most influential of
peoples and religions and the demand for Greek concepts taken up by the Romans was
justice and a fair system of law founded upon the idea of Natural Law.60 This was formulated
strict morality permeated the thought and by the Stoic philosophers of the third century BC
conduct of subsequent generations. For and their theory was that it constituted a body
example, the Prophet Isaiah declared that of rules of universal relevance. Such rules were
sworn agreements, even where made with the rational and logical, and because the ideas
enemy, must be performed. and precepts of the ‘law of nature’ were rooted
in human intelligence, it followed that such rules
After much neglect, there is now more
could not be restricted to any nation or any
consideration of the cultures and standards that
group but were of worldwide relevance
evolved, before the birth of Christ, in the Far
East, in the Indian and Chinese civilisations. The Middle Ages and the Renaissance
Many of the Hindu rules displayed a growing
The Middle Ages were characterised by the
sense of morality and generosity and the
authority of the organised Church and the
Chinese Empire devoted much thought to
comprehensive structure of power that it
harmonious relations between its constituent
commanded. All Europe was of one religion,
parts. Regulations controlling violence and the
and the ecclesiastical law applied to all,
behaviour of varying factions with regard to
notwithstanding tribal or regional affiliations. For
innocent civilians were introduced and ethical
much of the period, there were struggles
values instilled in the education of the ruling
between the religious authorities and the rulers
classes. In times of Chinese dominance, a
of the Holy Roman Empire.
regional tributary-states system operated which
fragmented somewhat in times of weakness, Of particular importance during this era were
but this remained culturally alive for many the authority of the Holy Roman Empire and the
centuries. supranational character of canon law.65
Nevertheless, commercial and maritime law
The Romans had a profound respect for
developed apace. English law established the
organisation and the law. The law knitted
Law Merchant, a code of rules covering foreign
together their empire and constituted a vital
traders, and this was declared to be of universal
source of reference for every inhabitant of the
application.
far-flung domain. The early Roman law (the jus
civile) applied only to Roman citizens. It was Throughout Europe, mercantile courts were set
formalistic and hard and reflected the status of up to settle disputes between tradesmen at the
a small, unsophisticated society rooted in the various fairs, and while it is not possible to state
soil. that a Continental Law Merchant came into
being, a network of common regulations and number and influence of such
practices weaved its way across the intergovernmental institutions, and of these the
commercial fabric of Europe and constituted most important by far is the United Nations.
an embryonic international trade law.
The UN comprises the vast majority of states
(there are currently 192 member states) and
that alone constitutes a political factor of high
CH 2 INTERNATIONAL LAW TODAY
importance in the process of diplomatic
THE EXPANDING LEGAL SCOPE OF relations and negotiations and indeed
INTERNATIONAL CONCERN facilitates international co-operation and norm
creation. Further, of course, the existence of the
International law since the middle of the last Security Council as an executive organ with
century has been developing in many powers to adopt resolutions in certain
directions, as the complexities of life in the circumstances that are binding upon all
modern era have multiplied. member states is unique in the history of
One of the major problems of international law international relations.
is to determine when and how to incorporate International organizations have now been
new standards of behaviour and new realities of accepted as possessing rights and duties of
life into the already existing framework, so that, their own and a distinctive legal personality.
on the one hand, the law remains relevant and,
on the other, the system itself is not too REGIONAL ORGANISATIONS
vigorously disrupted.
The growth of regional organisations should also
The scope of international law today is be noted at this stage. Many of these were
immense. From the regulation of space created for reasons of military security, for
expeditions to the question of the division of the example NATO and the opposing Warsaw Pact
ocean floor, and from the protection of human organisations, others as an expression of
rights to the management of the international regional and cultural identity such as the
financial system, its involvement has spread out Organisation of African Unity (now the African
from the primary concern with the preservation Union) and the Organisation of American
of peace, to embrace all the interests of States.
contemporary international life.
Such regional organisations have added to the
International law, however, has not just developing sophistication of international law
expanded horizontally to embrace the new by the insertion of ‘regional–international law
states …it has extended itself to include sub-systems’ within the universal framework and
individuals, groups and international the consequent evolution of rules that bind only
organizations, both private and public, within its member states.
scope. It has also moved into new fields
MODERN THEORIES AND INTERPRETATIONS
covering such issues as international trade,
problems of environmental protection, human Positive Law and Natural Law
rights and outer space exploration.
The positivist school, declared that law as it
INTERNATIONAL ORGS AND UN exists should be analyzed empirically, shorn of
all ethical elements. Moral aspirations were all
Together with the evolution of individual human
well and good but had no part in legal science.
rights, the rise of international organizations
Manmade law must be examined as such and
marks perhaps the key distinguishing feature of
the metaphysical speculations of Natural Law
modern international law. In fact, international
rejected because what counted were the
law cannot in the contemporary era be
practical realities, not general principles which
understood without reference to the growth in
were imprecise and vague, not to say much more important. He is no longer an
ambiguous. interpreter of a body of formal legal rules,
but should be seen more as an active
This kind of approach to law in society reached
element in making decisions of public
its climax with Kelsen’s ‘Pure Theory of Law’.
policy.
Kelsen defined law solely in terms of itself and
eschewed any element of justice, which was Behaviouralism has divided the field of
rather to be considered within the discipline of international relations into basically two
political science. Politics, sociology and history studies, the first being a consideration of
were all excised from the pure theory which foreign policy techniques and the reasons
sought to construct a logical unified structure whereby one particular course of action is
based on a formal appraisal. preferred to another, and the second
constituting the international systems
The problem with Kelsen’s formulation of the
analysis approach.
basic norm of international law is that it appears
to be tautological: it merely repeats that states Balance Of Power System
which obey rules ought to obey those rules. It
Between 1848 and 1914 can be treated as the
seems to leave no room for the progressive
era of the ‘balance of power’ system. This
development of international law by new
system depended upon a number of factors,
practices accepted as law for that involves
such as a minimum number of participants
states behaving differently from the way they
(accepted as five), who would engage in a
have been behaving. Above all, it fails to
series of temporary alliances in an attempt to
answer the question as to why custom is
bolster the weak and restrict the strong, for
binding.
example the coalitions Britain entered into to
Another important element in Kelsen’s overawe France. It was basic to this system that
interpretation of law is his extreme ‘monist’ no nation wished totally to destroy any other
stance. International law and municipal law are state, but merely to humble and weaken, and
not two separate systems but one interlocking this contributed to the stability of the order.
structure and the former is supreme. Municipal
Bipolar System
law finds its ultimate justification in the rules of
international law by a process of delegation This was predicated upon the polarisation of
within one universal normative system. capitalism and communism and the
consequent rigid alliances that were created. It
New approaches
included the existence of a Third World of
1. understood in a historical manner and basically non-aligned states, the objects of
studied chronologically rivalry and of competition while not in
2. analysis of power politics and the themselves powerful enough to upset the
comprehension of international relations bipolar system. This kind of order facilitated
in terms of the capacity to influence and ‘frontier’ conflicts where the two powers
dominate collided, such as in Korea, Berlin and Vietnam,
3. behaviouralist movement - it introduced as well as modified the nature of sovereignty
elements of psychology, anthropology within the two alliances thus allowing such
and sociology into the study of organisations as NATO and the European
international relations and paralleled Community (subsequently European Union) on
similar developments the one hand, and the Warsaw Pact and
4. realist doctrine - . It emphasises that it is COMECON on the other, to develop.
community values and policy decisions
Games Theory
that determine the nature of the law and
accordingly the role of the judge is that
This is a mathematical method of studying Law’ or NAIL) notes the close relationship that
decision making in conflict situations where the exists between law and society, but emphasises
parties react rationally in the struggle for that conceptual analysis is also crucial since
benefits. It can be contrasted with the fight such concepts are not in themselves
situation, where the essence is the actual independent entities but reflect particular
defeat of the opponent (for example, the power relationships. The point is made that the
Israel– Arab conflict), and with the debate nexus between state power and international
situation, which is an effort to convince the legal concepts needs to be taken into
participants of the rightness of one’s cause. consideration as well as the way in which such
Other factors which are taken into account concepts in themselves reflect political factors.
include communications, integration,
CH 3 SOURCES
environment and capabilities.
By ‘sources’ one means those provisions
Quantitative Research Approach
operating within the legal system on a technical
It is primarily a methodological approach level, and such ultimate sources as reason or
utilising political, economic and social data and morality are excluded, as are more functional
statistics, and converting facts and information sources such as libraries and journals. What is
into a form suitable for scientific investigation. intended is a survey of the process whereby
Such methods with their behavioural and rules of international law emerge.
quantitative aspects are beginning to impinge
Article 38(1) of the Statute of the International
upon the field of international law. They enable
Court of Justice is widely recognised as the most
a greater depth of knowledge and
authoritative and complete statement as to the
comprehension to be achieved and a wider
sources of international law. It provides that: the
appreciation of all the various processes at
Court, whose function is to decide in
work.
accordance with international law such
Concept Of Legitimacy disputes as are submitted to it, shall apply:

States will obey the rules because they see such (a) international conventions, whether
rules and their institutional framework as general or particular, establishing rules
possessing a high degree of legitimacy. expressly recognised by the contesting
Legitimacy itself is defined as ‘a property of a states;
rule or rule-making institution which itself exerts
(b) international custom, as evidence of
a pull towards compliance on those addressed
a general practice accepted as law;
normatively because those addressed believe
that the rule or institution has come into being (c) the general principles of law
and operates in accordance with generally recognised by civilised nations;
accepted principles of right process’.
(d) subject to the provisions of Article 59,
Legitimacy may be empirically demonstrated judicial decisions and the teachings of
but compliance may be measured not only by the most highly qualified publicists of the
observing states acting in accordance with the various nations, as subsidiary means for
principle in question, but also by observing the the determination of rules of law
degree to which a violator actually exhibits
deference to that principle even while violating Distinction between formal and material
it. sources. The former, it is claimed, confer upon
the rules an obligatory character, while the
Critical Legal Studies Approach latter comprise the actual content of the rules.
Thus the formal sources appear to embody the
The critical legal studies approach (sometimes
constitutional mechanism for identifying law
termed the ‘New Approaches to International
while the material sources incorporate the usage into a custom and renders it part
essence or subject-matter of the regulations of the rules of international law.

1. CUSTOM
It is regarded as an authentic
expression of the needs and values of
2. Treaties
the community at any given time.
Treaties are known by a variety of
The essence of custom according
differing names, ranging from
to article 38 is that it should constitute
Conventions, International Agreements,
‘evidence of a general practice
Pacts, General Acts, Charters, through to
accepted as law’. Thus, it is possible to
Statutes, Declarations and Covenants.
detect two basic elements in the make-
All these terms refer to a similar
up of a custom. These are the material
transaction, the creation of written
facts, that is, the actual behaviour of
agreements whereby the states
states, and the psychological or
participating bind themselves legally to
subjective belief that such behaviour is
act in a particular way or to set up
‘law’.
particular relations between themselves.
Psychological factor is the belief
Treaties may be divided into ‘law-
by a state that behaved in a certain way
making’ treaties, which are intended to
that it was under a legal obligation to act
have universal or general relevance,
that way.
and ‘treaty-contracts’, which apply only
as between two or a small number of
State Practice
states.
It is how states behave in practice
Parties that do not sign and ratify
that forms the basis of customary law,
the particular treaty in question are not
but evidence of what a state does can
bound by its terms.
be obtained from numerous sources
Law-making treaties are those
The obvious way to find out how
agreements whereby states elaborate
countries are behaving is to read the
their perception of international law
newspapers, consult historical records,
upon any given topic or establish new
listen to what governmental authorities
rules which are to guide them for the
are saying and peruse the many official
future in their international conduct.
publications. There are also memoirs of
Such lawmaking treaties, of necessity,
various past leaders, official manuals on
require the participation of a large
legal questions, diplomatic interchanges
number of states to emphasise this
and the opinions of national legal
effect, and may produce rules that will
advisors. All these methods are valuable
bind all.96 They constitute normative
in seeking to determine actual state
treaties, agreements that prescribe rules
practice.
of conduct to be followed. Examples of
International organizations in fact
such treaties may include the Antarctic
may be instrumental in the creation of
Treaty and the Genocide Convention.
customary law.
There are also many agreements which
States’ municipal laws may in
declare the existing law or codify existing
certain circumstances form the basis of
customary rules, such as the Vienna
customary rules.
Convention on Diplomatic Relations of
1961.
Opinio Juris
‘Treaty-contracts’ on the other
Belief that a state activity is legally
hand are not law-making instruments in
obligatory, is the factor which turns the
themselves since they are between only
small numbers of states and on a limited interpreting this, although on the broadest
topic, but may provide evidence of level it is possible to see equity (on an
customary rules. For example, a series of analogy with domestic law) as constituting a
bilateral treaties containing a similar rule creative charge in legal development,
may be evidence of the existence of producing the dynamic changes in the
that rule in customary law, although this system rendered inflexible by the strict
proposition needs to be approached application of rules.
with some caution in view of the fact that
bilateral treaties by their very nature
often reflect discrete circumstances.
4. Judicial Decision
In addition to the Permanent
Court and the International Court of
3. General Principles of Law Justice, the phrase ‘judicial decisions’
also encompasses international arbitral
Various Definitions
awards and the rulings of national courts.
 an affirmation of Natural Law concepts, There have been many international
which are deemed to underlie the arbitral tribunals, such as the Permanent
system of international law and Court of Arbitration created by the
constitute the method for testing the Hague Conferences of 1899 and 1907
validity of the positive (i.e. man-made) and the various mixed-claims tribunals,
rules including the Iran–US Claims Tribunal,
 a principle of international law that the and, although they differ from the
reparation of a wrong may consist in an international courts in some ways, many
indemnity corresponding to the damage of their decisions have been extremely
which the nationals of the injured state significant in the development of
have suffered as a result of the act which international law
is contrary to international law. While the Statute of the
 it is a rule of law generally accepted, as International Court of Justice the
well as one acted upon in the past by the decisions of the Court have no binding
Court, that, once the Court has been force except as between the parties and
validly seized of a dispute, unilateral in respect of the case under
action by the respondent state in consideration, the Court has striven to
terminating its Declaration [i.e. follow its previous judgments and insert a
accepting the jurisdiction of the Court], measure of certainty within the process:
in whole or in part, cannot divest the so that while the doctrine of precedent
Court of jurisdiction. as it is known in the common law,
whereby the rulings of certain courts
EQUITY must be followed by other courts, does
The most famous decision on these lines was not exist in international law, one still finds
that of Judge Hudson in the Diversion of that states in disputes and textbook
Water from the Meuse case149 in 1937 writers quote judgments of the
regarding a dispute between Holland and Permanent Court and the International
Belgium. Court of Justice as authoritative
decisions.
-the Court has some freedom to consider The decisions of municipal courts
principles of equity as part of the may provide evidence of the existence
international law which it must apply.’ of a customary rule. They may also
However, one must be very cautious in constitute evidence of the actual
practice of states which, while not a international law would be treated as part of
description of the law as it has been held the high seas.
to apply, nevertheless affords examples
POSITIVISM
of how states actually behave, in other
words the essence of the material act Positivism stresses the overwhelming
which is so necessary in establishing a importance of the state and tends to regard
rule of customary law. international law as founded upon the consent
of states. It is actual practice, illustrated by
5. Writers custom and by treaty, that formulates the role
Article 38 includes as a subsidiary of international law, and not formalistic
means for the determination of rules of structures, theoretical deductions or moral
law, ‘the teachings of the most highly stipulations.
qualified publicists of the various
nations’. DUALISM
With the rise of positivism and the Stresses that the rules of the systems of
consequent emphasis upon state international law and municipal law exist
sovereignty, treaties and custom separately and cannot purport to have an
assumed the dominant position in the effect on, or overrule, the other.
exposition of the rules of the international
system, and the importance of legalistic NATURALIST
writings began to decline. Thus, one finds It is an approach characterised by deep
that textbooks are used as a method of suspicion of an international system based upon
discovering what the law is on any the sovereignty and absolute independence of
particular point rather than as the fount states, and illuminated by faith in the capacity
or source of actual rules of the rules of international law to imbue the
international order with a sense of moral
purpose and justice founded upon respect for
CH4 INTERNATIONAL LAW AND MUNICIPAL LAW human rights and the welfare of individuals.
Municipal law governs the domestic MONISM
aspects of government and deals with issues
between individuals, and between individuals Law is regarded as constituting an order which
and the administrative apparatus, while lays down patterns of behaviour that ought to
international law focuses primarily upon the be followed, coupled with provision for
relations between states. sanctions which are employed once an illegal
act or course of conduct has occurred or been
That is now, however, an overly simplistic embarked upon. Since the same definition
assertion. There are many instances where appertains within both the internal sphere and
problems can emerge and lead to difficulties the international sphere, a logical unity is
between the two systems. In a case before a forged, and because states owe their legal
municipal court a rule of international law may relationship to one another to the rules of
be brought forward as a defense to a charge, international law, such as the one positing
as for example in R v. Jones, where the defense equality, since states cannot be equal before
of seeking to prevent a greater crime the law without a rule to that effect, it follows
(essentially of international law) was claimed that international law is superior to or more basic
with regard to the alleged offence of criminal than municipal law.
damage (in English law), or where a vessel is
being prosecuted for being in what, in domestic THE ROLE OF MUNICIPAL RULES IN
law, is regarded as territorial waters but in INTERNATIONAL LAW
The general rule with regard to the our own domestic law . . . The courts
position of municipal law within the international acknowledge the existence of a body of rules
sphere is that a state which has broken a which nations accept among themselves. On
stipulation of international law cannot justify any judicial issue they seek to ascertain what
itself by referring to its domestic legal situation. the relevant rule is, and having found it they will
treat it as incorporated into the domestic law,
It is no defence to a breach of an
so far as it is not inconsistent with rules enacted
international obligation to argue that the state
by statutes or finally declared by their tribunals.
acted in such a manner because it was
following the dictates of its own municipal laws. One effect of the doctrines as enunciated by
the courts in practice is that international law is
However, such expressions of the
not treated as a foreign law but in an evidential
supremacy of international law over municipal
manner as part of the law of the land. This means
law in international tribunals do not mean that
that whereas any rule of foreign law has to be
the provisions of domestic legislation are either
proved as a fact by evidence, as occurs with
irrelevant or unnecessary.
other facts, the courts take judicial notice of any
One of the ways that it is possible to rule of international law and may refer, for
understand and discover a state’s legal position example, to textbooks rather than require the
on a variety of topics important to international presence and testimony of expert opinion.
law is by examining municipal laws.
In the case of treaties, the states involved
A country will express its opinion on such may create new law that would be binding
vital international matters as the extent of its upon them irrespective of previous practice or
territorial sea, or the jurisdiction it claims or the contemporary practice. In other words, the
conditions for the acquisition of nationality influence of the executive is generally of
through the medium of its domestic lawmaking. greater impact where treaty law is concerned
Thus, it is quite often that in the course of than is the case with customary law and this is
deciding a case before it, an international court particularly so where, as in the UK, ratification of
will feel the necessity to make a study of treaties is an executive act. It follows from this
relevant pieces of municipal legislation. that were treaties to be rendered applicable
directly within the state without any
In addition to the role of municipal law in intermediate stage after signature and
revealing the legal position of the state on ratification and before domestic operation, the
topics of international importance, the rules of executive would be able to legislate without
municipal law can be utilized as evidence of the legislature. Because of this, any
compliance or non-compliance with incorporation theory approach to treaty law has
international obligations. been rejected.
INTERNATIONAL LAW BEFORE MUNICIPAL General rule is that treaties need legislation
COURTS to be binding upon citizens. However, treaties
International treaties may impose relating to the conduct of war, cession of
requirements of domestic legislation upon territory and the imposition of charges on the
states parties, while binding Security Council public purse do not need an intervening act of
resolutions may similarly require that states take legislation before they can be made binding
particular action within their jurisdictions. upon the citizens of the country.

CUSTOMARY INTERNATIONAL LAW DOCTRINE OF There is no rule specifying the precise


INCORPORATION legislative method of incorporation of a treaty
and a variety of means are available in
International law has no validity except in so far practice. For example, a treaty may be
as its principles are accepted and adopted by incorporated into domestic law by being given
the force of law in a statute with or without
being scheduled to the relevant act; by being
referred to in a statute otherwise than in an
incorporating statute; by tangential reference
in a statute; and by statutory referral to
definitions contained in a treaty.