Nature of Law

The status of international law has been challenged at both the

theoretical level and at the practical level by John Austin (1790-
1859) and H. L. A. Hart (1907-1992)
John Austin
- He argued that international law was not positive law
because it lacked a sovereign.
- A sovereign is a person who received obedience of the
members if an independent political society and who, in turn,
does not owe such obedience to any person.
- Rules of international law did not qualify as rules of positive
law by this test.
- Not being commands of any sort caused it to be placed into
a category of laws “improperly so called”
Counter Arguments
- There is no governing body with a legal system that
conforms to Austin’s ideology
- The international legal system is unique and therefore
cannot be compared to any municipal system.
HLA Hart
- He described international law as a primitive legal order.
- According to him, an advanced legal order contains both
primary rules and secondary rules.
- Primary rules are those imposing duties
- Secondary rules are a “rule of recognition”, “rule of change”
and “rules of adjudication”.
- He posited that the international legal system is primitive
because it lacks secondary rules.

Counter Arguments
- The rule of recognition which provides means of
identification of primary rules exist within international law. It
is incorporated in the Statue of the ICJ (International Court of
Justice)
- Rules of change operate to some extent through
international treaties and customary law
- Rules of adjudication are in existence in that many
international treaties provide for compulsory jurisdiction of
international courts, tribunals and other international bodies.
Practical Arguments-
The main argument against international law being law is that
there is no legislature, executive or enforcer of international law.
The Counter Arguments
- International law is unique because it derives from consent
of States and regulates relations between equal, sovereign
and independent States with the consequence that the
system is decentralized.
- International laws exist as law because States recognize and
observe it with the consequence that there is substantial
order in internal relations.
- International law is practiced on a daily basis by international
lawyers, IGOs and other non-State actors and applied by
domestic and international courts.
Compliance With International Law
Reasons a state would usually comply with international law:
 It has consented to international obligations
 The prospective long-term advantage if compliance prevails
over any short-term advantage resulting from violation.
 It wants to maintain its good reputation
 It fears retaliatory measures
 It fears public opinion both at home and abroad
 When international law is made part of a national law
individuals by brining proceedings against a State force that
State to comply.
 Enforcement of International Law
The following measures may be taken to ensure compliance
with international law:
Non forcible: Diplomatic, economic and other sanctions not
involving the use of force
Forcible: the UNSC under Article 42 of the Un Charter may
authorize the use of force against a State.
Psychological: condemnation by public opinion of particular
conduct by a State.

Against a person:
 A person may be brought before the ICC or other
International Criminal Courts.
 The UNSC may impose sanctions against a person or an
identified group of persons (like head of State, suspected
terrorists and leaders of armed groups)
 A State may impose sanctions such as confiscation of
assets, fines and imprisonment on a person (suspected
terrorists or a foreign drug trafficker or anyone within its
jurisdiction who provides support for these persons)
 Victims may bring criminal law or civil actions in national
courts against foreign persons who have violated
international law.
 Situations to Which International Law is Relevant
- Co-operation= States are naturally interdependent in many
ways and international law facilities co-operation.
- Co-existence= States have to co-exist with one another and
a way of facilitating this is to define their relationships by
making treaties and other consensual agreements
- Conflict- Here the role of the international law confined to
two main functions (The prescribing of technical rules of
conduct and the keeping of any conflict to a minimum)
Sources of Public International Law
 
There are five(5) distinct sources of int'l law that can be found in the statute
of the International Court of Justice (ICJ) in Article 38 (1). These five
sources are:
 Treaties and Conventions S. 38 1 (a) -
 International custom
 General principles of international law
 Judicial decisions
 The writings of publicists
 Equity
 
Treaties
 There are two types of treaties. Law making and treaty contracts.
 Law making treaties lay down rules of general or universal
applications and are intended for future and continuing observance.
 Treaty contracts resemble contracts and are meant to perform
contractual functions instead of normative functions.
 
Characteristics of Treaties
1. Treaties as a source of law become binding on the parties by virtue
of their consent.
 
International Custom can be defined in two ways.
1. Material element - a general practice, the practice of states.
2. A psychological element - the subject conviction of a state that it is
legally bound to behave in a particular way in respect of a particular
type of situation
 
Customs can be General or Regional
General - binding upon the international community as a whole.
Regional/ local - a group of states or two states who have relations with
one another. (Portugal v. India) Right of Passage
 
 
North Sea Continental Shelf Cases
Facts:
Netherlands and Denmark had drawn partial boundary lines based on the
equidistance principle. An agreement on further prolongation of the
boundary proved difficult because Denmark and Netherlands wished the
prolongation to take place based on the equidistance principle. Where- as
Germany was of the view that, together, these two boundaries would
produce an inequitable for her. Germany stated that due to its concave
coastline, such a line would result in her losing out of her share of the
continental shelf based on proportionality to the length of its North Sea
coastline. The court had to decide the principles and rules of international
law applicable to this delimitation. In doing so, the court had to decide if the
principles espoused by the parties were binding on the parties either
through treaty law or customary international law.
 
Issue:
 Whether Germany would be under a legal obligation to accept the
equidistance special circumstances principle, contained in Article 6
of the Geneva Convention, either as a customary international law
rule or on the basis of the Geneva Convention?
 
Held:
 The Equidistance principle was not inherent in the basic concept of
continental shelf rights, and this principle was not a rule of
customary international law.
 
Position of the ICJ
 Given the practical difficulties in establishing opinio juris, seems to
place an increasing emphasis on determining the extent of the
practice.
 The first approach of the ILC to the subjective element is that the
relevant rule must be accepted as law by a state.
 Secondly, acceptance of the practice as law must be evidenced
separately from the existence of the practice.
 
The persistent objector rule
 When a state persistently objects to a rule of customary int'l law
during the formative stage of that rule, it will not be bound by it.
 
Several conditions must be met by a state in order to rely on the persistent
objector rule:
These are:
1. The objection must be raised during the formative stage of the rule
2. The objection must be expressed
 3. Objection must be maintained consistently
4. The burden of proof is on the objecting state
 
N.B New states can- not rely on this rule and must show their acceptance
of all international law including its customary rules.
 
International Customs and Treaties
The relationship between treaties and customary rules can be described as
complex. They may co- exist, develop each other and can even clash.
A treaty may reflect a custom in one of three ways.
1. It may be declarative of custom
2. It may crystallize a rule of custom in the process of emerging
3. It may serve to generate a rule of customary law in the future.
 
The Lex Specialis
 With regard to conflict between a treaty provision and a customary
rule, there is no general rule as to which should be applied in any
particular case.
 
Conflict between a rule of a treaty and a rule of customary law (the lex
superior derogat lex inferior) - the laws of a superior
 
hierarchy prevail over the laws of an inferior hierarchy
Lex posteriori derogat lex priori - If laws are of the same hierarchy the most
recent law prevails over earlier inconsistent law. However, a newly
developed customary law should not affect the operation of a treaty.
 
Implications of the recognition of jus cogens: (rules in international law that
are peremptory or authoritative and which states cannot get away from.
1. Any rule incompatible with a jus cogens rule must be set aside, or
treated as devoid of legal force.
A treaty is regarded as void if at the time of its conclusion, it conflicts with a
peremptory norm of general international law. (article 53 VCLT)
 
Peremptory norms :
1. Reflect and protect fundamental values of the international
community
2. Hierarchically superior to other rules of international law
3. Universally applicable
 
Special Rules of Customary International Law
 Known as jus cogens rule
 Jus cogens rules are at the highest status in the informal hierarchy of
sources of international law.
 They are binding on all states
 It was articulated in article 53 of the 1969 Vienna Convention of the
Law of treaties (VCLT), which states "For the purposes of the
present convention, a peremptory norm of general international law
is a norm accepted and recognized by the international community
of states as a whole as a norm from which no derogation is
permitted"
 
Legal Implications of the recognition of Jus Cogens by the ILC - as the jus
cogens rule is at the pinnacle of the hierarchy of sources of international
law, require that any rule of international law which is incompatible with a
jus cogens rule, depending on the circumstances must be:
1. Set aside
2. Treated as devoid of legal force
3. Discarded
 
Controversies
1. Nature of Jus Cogens rules
2. Requirement for their identification
3. Consequences and effects of jus cogens, on treaties and other
sources of law
 
Core Elements of Jus Cogens
 Recognized and accepted by the international community
 Non - derogable ( can only be modified by rules having the same
character)
 Protect fundamental values of int'l community
 Superior to all other rules
 Universally applicable
 
Legal Consequences of JC for Treaties
1. Article 53 of VCLT- a treaty is void if at the time of its conclusion, it
conflicts with a peremptory norm of general int'l law
2. Article 64 of VCLT - if a peremptory norm of general int'l law
emerges, any existing treaty which is in conflict with that norm
becomes void and is terminated
 
List of Jus Cogens
1. Prohibition of aggression
2. Prohibition of genocide
3. Prohibition of crimes against humanity
4. Basic rules of int'l humanitarian law
5. Prohibition of racial discrimination and apartheid
6. Prohibition of slavery
7. Prohibition of torture
8. The right of self determination
 
General Principles of Int'l Law
1. Principles inferred from municipal laws
2. Principles relevant only to international law which derive from the
specific nature of int'l law
N.B General principles of Int'l law must be recognized, otherwise it will
cease to exist. (article 38(1) ( c) 
General principles are derived from national legal systems
 
Relationship between the general principles and other sources of Int'l Law
 General principles may become rules of customary law, but at the
stage where they do not fit into the narrow definition of a customary
rule, then they are just general principles
 Burkina Faso v Republic of Mali