THE UNIVERSITY OF THE GAMBIA

POL 207: INTRODUCTION TO INTERNATIONAL LAW

1ST SEMESTER 2019/2020
GROUP 1 ASSIGNMENT
ISMAILA JAITEH (MEMBER)

EVIDENCE OF INTERNATIONAL LAW AS A LEGAL SYSTEM

INTRODUCTION
Perhaps the most distinctive aspect of the German approach to public law in general and to
public international law in particular is the systemic vision: the effort to envision the
various legal norms as arranged within a hierarchy, composing together a coherent, logical
order. This systemic approach has contributed significantly to the emergent conception of
international law as a legal system. Lacking a global legislator, the systemic vision has
provided a potent tool for the development of international law. The system of norms
constitutes a map that guides lawyers in their search for applicable norms, and empowers
judges to fill lacunae, interprete treaties, resolve conflict between norms, and in general,
develop and solidify the system.
THE SYSTEMIC VISION OF INTERNATIONAL LAW
The systemic vision characterizes German legal scholarship in general, and is probably the
key to understanding its significant and lasting influence on decision makers in Germany.
This systemic approach has been particularly helpful in constructing a global world view of
law that delimits national sovereignty and governs inter-state relations. The systemic
vision organizes the diverse types of communications between states – actions,
agreements, declarations, even silence – as legal obligations arranged witin a certain
hierarchy and internal coherence. That today most contemporary students, scholars and
practioners envision international law as a legal system is arguably the outcome of German
public law scholarship.
Developed during the nineteenth century by German (German – speaking) scholars such as
George Friedrich von Martens, August Wilhelm Heffter and Johann Caspar Bluntschli,
contributed to the evolving legal order, because it provided room for both continuity and
change: continuity of the basic principles of a legal system, with its rules of recognition,
coupled with the appreciation of the role of judges in developing the law through
interpretation, and change through the ample opportunities state actors have to adjust
specific norms by their practice.
Fortunately for the proponents of the vision of international law as a legal system, the
German approach has been influential also beyong Germany. It was introduced to the
Anglo-American world through the writings of German and German-speaking emigres such
as Francis Lieber, Lassa Oppenheim, Sir Hersch Lauterpacht, George Schwarzenberger, Hans
Kelsen, and many others. In the works of all these scholars, there is a pronounced endeavor
to create a coherent system of laws, one that resolves potentially contradictory outcomes
and allows lawyers and courts to bridge across the archipelago of treaties and disparate
state practice to fill legal voids. The recent international law commission report on
fragmentation, with its suggestion that no international undertaking is beyond the reach of
the Vienna Convention on the Law of Treaties, and the increasing resort by international
tribunals and domestic courts to the concepts of erga onmes and jus cogens obligations are
evidence of the durability of this approach. (Tel Aviv Law Papers 2008)
THE SYSTEMIC VISION AS A DELEGATION OF AUTHORITY
The vision of international law as a legal system creates a space within which decision
makers can reach conclusions about specific outcomes using the rhetoric of law, rather
than the rhetoric of what is just or efficient. Judges, in their quest to assert what the law is
requires them to use the lawyers tools of interpretation, deduction and inference to justify
specific rules they articulate to reach specific conclusions. The vision of international law as
a legal system rather than a mix of discrete treaties allows them to interpret, deduct, draw
interences and resolve conflicts not only by resorting to the specific treaties at hand but
also by relying on the basic principles of the system and its underlying norms.
As a result of this implicit authorization, perhaps the most significant political outcome of
the vision of international law as a legal system is the empowerment of courts to develop
international law beyond the intention of governments. This vision supplies relatively
independent bureaucracies and judiciaries with doctrines that enable them to expand their
authority while maintaining coherence and consistency through broad interpretation of
treaties and the development of customary international law.
International tribunals have developed alternative interpretive approaches, such as
‘evolutionary interpretation,’’ which are inspired by systemic goals such as coherence and
efficiency. Recourse to the doctrines of customary international law, jus cogens, and erga
omnes obligations, allow judges considerable discretion to make new law while couching it
in existing practices or fundamental norms. Indeed, international tribunals exercise
considerable discretion in both ‘identifying’ state practice and in determining whether
following that practice reveals a state’s acknowledgment of its binding quality, making it a
customary international law norm. Moreover, international tribunals have promoted what
Lauterpacht referred to as ‘’the principle of effectiveness’’ in a treaty interpretation to
ensure that the treaties effectively achieve their goals, even reading into the texts
additional obligations if necessary. If a treaty establishes institutions, the courts will bolster
those institutions, strengthening their authority internally and externally. (Eyal Benvenisti
2008)
ACHIEVEMENTS AND CHALLENGES FOR THE SYSTEMIC VISION OF INTERNATIONAL
According to Benvenisti (2008) in the Tel Aviv Law Papers, obviously, the concept of
international law as a coherent whole has had its marked effect in shaping outcomes in the
international arena. A systemic vision that constructs and maintains an international rule
of law promises all states-weak and strong alike-equal formal status to take part in the
lawmaking process, and even importantly equal protection via an impartial decision maker
that resorts to a coherent and consistent interpretation and application of the law. By
creating general principles, normative hierarchy, and by previledging consistency and
precedent, judges provide weaker states with claims they can employ in a varietyof
adjudicative bodies. Evidence provides that developing countries seek judicial assistance in
protecting their rights and promoting their interests more often than do strong states and
that the concept of international law as a legal system operated by judges benefits the
weaker states (a dominant view holds that the systemic view includes the basic human
rights obligations as permeating the entire corpus of the law, adjudicative bodies view
themselves authorized also to protect the individual rights and interests over-looked by
governments.
But the systemic vision of the law does not eliminate discord. There can be competing
perceptions as to what constitutes the legal system. One well0knowh debate relates to the
so-called ‘’self-contained regimes,’’ such as the EU and WTO as discrete systems immune to
the general normative order. Another arid debate concerns the relationships between the
international legal system and the national system in countries that follow the Dualist
approach.

EXISTENCE OF INTERNATIONAL RULES AS A SYSTEM OF LAW

 Members of the international community recognize that there exists a body of rules
binding upon them. For instance:
- Majority regard certain invasions as unlawful, not merely immoral or unacceptable.
- Forceful invasions also regarded as violation of law not just unethical or
undesirable
 Those who use or defend use of force do not debunk IL as irrelevant or non-existent,
rather they try to justify it as ‘lawful’.  E.g. Turkey justifying its ongoing invasion in
Syria as its right to self-defense (from Syrian Kurdish and IS) under UN Charter; US
invasion of Panama- US asserted self-defense and Panama’s violation of treaty which
provided for use of force
Evidence of existence (effectiveness, recognition, compliance)
  IL practiced on a daily basis: in foreign offices (main mandate of legal departments
within), national courts (usually concerned with substantive questions of IL, e.g.
Human Rights cases), International Organizations, etc.
 States don’t claim to be above the law or that IL doesn’t bind them. (as discussed
under International Syst.)
Compliance
 Majority of Intl rules are consistently obeyed.
Of course there will be occasions of disobedience or ignoring the law, just as in domestic
law so.
Also worth pointing out that seemingly/apparent ineffectiveness of IL generally stems from
the fact that occasions of law breaking tend to gain publicity. Disregarding treaties or
customary law are the rare cases.
This begs the question: Why do States comply?

Justifying IL as Law
 In domestic legal systems, it is assumed, the law will be enforced, might not be the
case in IL, e.g. no formal enforcement in …………… In such cases, the UN mainly
concerned with restoring the peace than enforcement.
 The validity of law may depend on the way it is created, being the method regarded
as authoritative by subjects. So the fact that enforcement might be reason
individuals obey, not the reason why it is law (i.e. enforcement may be reason for
obedience not reason for its being).
Enforcement Methods
i. The Security council
ii. Loss of legal rights and privileges
iii. Judicial enforcement
The Security Council
 Under UN Charter (art 39) Security Council may take ‘enforcement action’ against a
state when it poses a threat to the peace, or has committed and act of aggression or
breach of the peace.
 Enforcement action authorized by resolution of the Council, which maybe military
action, economic sanctions, trading restrictions and embargoes, other measures
which may be diplomatic, political or social
  SC may also act against non-state entities, e.g. financial and economic sanctions
against Al-Qaeda and Taliban
Loss of Legal Rights and Privileges:
 To ensure that any violation of law results in loss of corresponding legal rights and
privileges. For instance, if terms of a treaty are violated, other party entitled to
rescind the whole treaty or suspend performance of obligations.
 There might be other penalties on a bilateral level, e.g. termination of diplomatic
relations, restriction of economic aid, etc.
 Unlawful action may lead to community at large imposing penalties. This can be in
various forms as well. For instance, expulsion from IGO, e.g. expulsion of Israel from
IAEA when it unlawfully attacked Iraq nuclear facility in ’81.
 These methods are quite efficient in most cases as they can cause embarrassment
and hardship to delinquent state.
 Such measures might be limited cos they are overlaid with economic and political
considerations (states are careful on consequences)
Judicial enforcement:
 

 There are various procedures:

- Ad hoc tribunals,
- ICJ,
- ICC
Specialized Judicial Institutions
 Growth of specialized judicial institutions concerned with discreet issues of IL. E.g.
- Iran-US Claims Tribunal (inter-state disputes)
- Yugoslavia and Rwanda war crimes Tribunals
- ICC (this additionally pertains to the growing importance of individuals as subjects
of international legal disputes); etc.
The Effectiveness of IL
One of the main reasons of its effectiveness is that its based on common self-interest and
necessity
 Current intl society is more interdependent with volume of inter-state activity
continually growing in volume and pace.
  Basically IL needed to ensure stable and orderly intl society. They create a stable
society by laying down orderly principles not just for the conduct of IR and intl
commerce, but diverse global issues like environmental (climate change, health
repercussions, etc), thus in every state’s interest (even super powers)
 Because IL is not imposed especially from one of its key sources, treaties, States are
free to enter or not. (Give and take provision because treaties are provisions States
believe are already in their interest before signing.
 Customary Law, a very strong indication of popular consensus on a norm that is in
the interest of all of most.
 Law has a self-perpetuating quality: when it is accepted as the principles that
govern a society, the rules of that system assume a validity and force of their own
 Breaking IL is not taken lightly and certainly not the preferred course of action (a
psychological barrier against breaking it)
 A state’s actions being regarded as “unlawful” and “illegal” are a more powerful
criticism than being regarded as “immoral” or “unacceptable (esp considering the
contentious nature of morality)
 IL works hand in hand with politics and diplomacy. Practiced mainly under foreign
offices, legal units of International Organisations mainly by well trained lawyers
both on national and international law.
 In practice, the application of IL is actually the judgment of such individual legal
practitioner or advisers whose qualifications and expertise are highly recognized
and respected.
 Flexibility gives room to address ambiguity with due course. E.g. breadth of
territorial sea only decided at 3rd UNCLS.
Some critics consider ambiguity a weakness because states need stability. However,
absence of rigidity leads to modest claims. (compromise)
Basically, the array of options states have is an advantage, especially considering the fact
that IL is very much related to politics and diplomacy, which are characterized by range
and unpredictable policies.
 There is so much a state can loose in violating IL other than legal sanctions. These
can be both political and economic, e.g.:
- Loss of influence and trust in breaching (consequence, reduction in overseas trade)
- Loss of foreign aid
 - Refusal to enter into negotiations or to sign treaties and agreements (bilateral and
multi lateral) eg US propagating HR wont be very popular considering Guantanamo,
Or Gambia considering history of violations
- Public and embarrassing criticisms from a breach, especially HR violations, etc
- Mostly the individuals who act on behalf of the State through policy formulation and
implementation (be it civil servants or diplomats) are savvy with and always have IL
policies at the back of their minds in their capacity as representatives of the State.
CONCLUSION
One of the most important contributions of German scholarship to international law has
been its conception as a legal system of law. When the Cold War ended, the vision was most
likely at its zenith. Since then and in particular since 11 September 2001, it is increasingly
being questioned and challenged. Fortunately for the adherents of the systemic vision
aroung the globe, the systemic vision is no longer German: it is universal.

REFERENCES
Benvenisti, E. (2008), The Conception of International Law as a Legal System. Tel Aviv
University Law School,Tel Aviv University Law Faculty Papers, The Berkeley Electronic
Press. Paper83
Shaw, (2008), International Law. New York. Cambridge University Press
Dibba, H. (2020), Nature and Development of International Law, [Lecture] Introduction to
International Law, University of the Gambia. 12th March