International Law
the Thirty Years War (1618-1648) and
- a body of rules and principles of action
which are binding upon civilized states in their
relations to one another.
- States are the sole actors
- dealt almost exclusively with regulating
the relations between states in
diplomatic matters and in the conduct
of war
- defines international law as the law
which deals “with the conduct of states
and of international organizations and
with their relations inter se, as well as
with some of their relations with
persons, whether natural or juridical.”
Scope:
- regulation of space expeditions
- the division of the ocean floor, the
- protection of human rights, the
- management of the international
financial system, and the
- regulation of the environment.
- covers all the interests of contemporary
international and even domestic life.
Public international law governs the
relationships between and among states and
also their relations with international
organizations and individual persons.
Private international law is really domestic law
which deals with cases where foreign law
intrudes in the domestic sphere where there
are questions of the applicability of foreign law
or the role of foreign courts.
The progressive rules of jus gentium, seen as a
law “common to all men,” became the law of
the vast Roman empire.
The following are some of the significant
milestones in the development of international
law: (a) The Peace of Westphalia, which ended
established a treaty based framework for peace
cooperation. (It was at this time that pacta sunt
servanda arose.) (b) Congress of Vienna (1815),
which ended the Napoleonic Wars and created
a sophisticated system of multilateral political
and economic cooperation. (c) Covenant of the
League of Nations (1920) which included the
Treaty of Versailles which ended World War I. In
the aftermath of World War I, the victors
decided to create an institution designed to
prevent the recurrence of world conflagration.
Thus, the League of Nations was bom. Its
membership consisted of 43 states which
included the five British dominions of India,
Canada, South Africa, Australia and New
Zealand. The United States did not join.
The League created the Permanent Court of
International Justice.
Sources:
Formal sources can refer to the various
processes by which rules come into existence.
Thus, for instance, legislation is a formal source
of law. So are treaty making and judicial
decision making as well as the practice of states.
Material sources, on the other hand, are not
concerned with how rules come into existence
but rather with the substance and content of
the obligation. They identify what the
obligations are. In this sense, state practice, UN
Resolutions, treaties, judicial decisions and the
writings of jurists are material sources in so far
as they identify what the obligations are. They
are also sometimes referred to as “evidence” of
international law.
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 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 ex aequo et bono, if the
parties agree thereto.
1. Article 38 is a declaration by states that
these are the laws under which they are
willing to be bound.
A rule of international law is one that
has been accepted as such by the
international community of states
a) in the form of customary law;
b) by international agreement; or
major legal systems of the world.
2. Customary international law results
from a general and consistent practice
of states followed by them from a sense
of legal obligation.
3. International agreements create law
for the states parties thereto and may
lead to the creation of customary
international law which such
agreements are intended for adherence
by states generally and are in fact
widely accepted.
4. General principles common to the
major legal systems, even if not
incorporated or reflected in customary
law or international agreements, may
be invoked as supplementary rules of
international law where appropriate.
Briefly, therefore, the “sources” of
international law are custom, treaties and
other international agreements, generally
recognized principles of law, judicial
decisions and teachings of highly qualified
and recognized publicists.
Custom or customary international law
means “a general and consistent practice of
states followed by them from a sense of
legal obligation.”
Elements:
1. Material factor - how states behave
(duration, consistency, and generality of
the practice of states).
Ex. An example of customary law that is the
result of long, almost immemorial, practice
is the rule affirmed in The Paquete Havana2
on the exemption of fishing vessels from
capture as prize of war.
By an ancient usage among civilized nations,
beginning centuries ago, and gradually
ripening into a rule of international law,
coast fishing vessels, pursuing their vocation
of catching and bringing in fresh fish, have
been recognized as exempt, with their
cargoes and crews, from capture as prize of
war.
In the North Sea Continental Shelf Cases,
however, the Court indicated that a short
duration, by itself, will not exclude the
possibility of a practice maturing into
custom provided that other conditions are
satisfied:
Although the passage of only a short period
of time is not necessarily, or of itself, a bar
to the formation of a new rule of customary
international law on the basis of what was
purely a conventional rule, an indispensable
requirement would be that within the
period in question, short though it might be,
State practice, including that of states
whose interests are specially affected,
should have been both extensive and
virtually uniform in the sense of the
provision invoked — and should moreover
have occurred in such a way as to show a
general recognition that a rule of law or
legal obligation is involved.

Duration – not important element.

More important is the consistency and the

generality of the practice. The basic rule on
consistency, that is, continuity and
repetition.

Psychological or subjective factor - why they

behave the way they do.