CHAPTER 1: THE INTERNATIONAL SYSTEM

INTERNATIONAL LAW AS PROCESS.

Continuing Process, Not fixed Rules

International law is the unique system of law that continuously evolves from the process of identifying normative
conduct, which primarily governs relations among states, and secondarily governs other actors in the international
system, such as international organizations and individuals acting as collectivities.

A national system has a codified or easily identified body of rules, all promulgated under the theory that the state has a
monopoly of force to coerce its citizens to obey the law. A national system is usually characterized by a tripartite system
that performs the three main functions of legislations execution, and adjudication.

The international system does not recognize a sovereign authority with power to impose its will on the world. Although
the world is undergoing the process of globalization, there is still, according to Cassese, “relative anarchy.”

National law follows the principle of individual responsibility, as exemplified by the Penal Code. By contrast,
international law follows the principle of collective responsibility. There is now a trend to hold the state responsible, not
only for ordinary violations of international law, but also for gross violations of rules that enshrine essential community
values. In the past, international law followed the principle of individual responsibility for pirates only, while today
individual responsibility applies to those guilty of war crimes, crimes against peace, and crimes against humanity such as
genocide. But these are exceptions, and the general rule is still collective responsibility.

International law is a process rather than a set of pre-existing immutable rules. The application of international law
means, basically, the identification of what international law is on a given point, under the peculiar circumstances of a
given time.

The point that international law is a process rather than a set of neutral rules is an imperative of the principle pf self-
determination, which itself is a contemp6rary product of the law-creating process and is now accepted as a norm of
international law, In the process of development into norm, self-determination began as a moral right, and then evolved
into a political right, and finally became a legal right, to independence from colonial rule. In the 21st to decolonization,
century, self-determination as a legal right is no longer but is accepted as a human right of peoples.

Self-determination as the legal right to free choice is exemplified by the African Charter on Human and People's Rights
to Self-Determination, Article 20:
1. All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to
self-determination. They shall freely determine their political status and shall pursue their economic and
social development according to the policy they have freely chosen.
2. Colonial or oppressed peoples shall have the right to free themselves from the bonds of domination by
resorting to any means recognized by the international community.

The principle of self-determination is similarly provided for in the 1970 Declaration on Principles of International Law
Concerning Friendly Relations, as well as in various resolutions of the UN General Assembly and Security Council. Hence,
self-determination is a right of the state under international law, and is now a rule of customary law, based on state
practice in the UN system.
To define international law as a process is to accommodate the universal nature of international law, because such a
definition allows for Third World countries to challenge inequitable norms predesigned by the First and Second World
countries to suit their economic advantage.

The concept of international law as a process, or as a work in progress, was a logical consequence of the behavioralist
movement.
Thus, law is not merely a collection of legal rules, but a dynamic process evolving in society.

McDougal and New Haven School

The behavioral approach to international relations has been applied to international law as a "policy-orientated"
movement. As a result, international law is regarded no longer as a defined set of rules of obligations, but as a
comprehensive process of decision-making. Its foremost exponent was McDougal, who defined international law as "a
comprehensive process of authoritative decision in which rules are continuously made and remade."

In the nineteenth century, the Congress of Vienna ended the Napoleonic wars by creating a new international order
based upon the European balance of power. •International law was considered exclusive to the Western powers, who
laid down conditions before they would issue their consent to the extension of international law to other countries.
Europe began to change under the new forces of democracy, rationalism, and self-determination.

During the Cold War, the two main theories of international law were propounded on the one hand, by two Americans;
and on the other hand, by a Russian. The two Americans were Myres McDougal and Harold Lasswell of Yale Law School,
which produced the New Haven School. The Russian was C.I. Tunkin.

The New Haven School underlies the definition of international law as a continuing process. International law seeks to
advance a universal world of human dignity, which upholds such values as enlightenment, respect, power, well-being,
wealth, skill, affection, and rectitude. The goal of the New Haven School is to refine the American theory of legal realism,
which combines law and the social services, especially economics. Legal realism argues that the formulation of rules is
necessarily uncertain. Law is not merely a system of rules, but an empirical and realistic form of social engineering,
Hence, judicial decisions should take into account the social consequences of the law.

Under the New Haven School, law is not a system of rules, but a normative social system continuously built around
trends of authoritative decisions taken by authorized decision-makers, such as the various foreign ministries and
international tribunals led by the International Court of Justice. The New Haven School leads to the definition of
international law as "a continuing process of decisions involving choices aimed at realizing the common value of human
dignity.”

The view that international law is process rather than rules is articulated thus by Higgins:

International law is a continuing process of decisions. This view rejects the notion of law impartial application of
rules, International decision-making process, and not just the trend of government decisions which are termed
"rules."

And she adds in a separate article:

Policy considerations, although they differ from “Rules,” are an integral part of the decision making process
which we call international law; the assessment of so called extralegal considerations is part of the legal process,
just as is reference to the accumulation of past decisions and current norms.

When international law is defined as process rather than rules, include network attacks as a prohibited use of force. This
problem the advantage is that the law as it is, becomes closer to the law as illustrates how law and legal theory are
concerned with political it ought to be. If there are any gaps in the law, these gaps are filled concerns and conditions.
This problem shows that the determination 'by the use of analogy, by reference to context, by analysis of the of what
international law is, also considers political factors and alternative consequences after examination of such phenomena
as value choices, claims and counterclaims, state practice, decisions by a variety of authorized decision-makers."

Uncertainty in International Law

Thus, the international legal system is uncertain, because although the actors may agree on the provisions of particular
norms of conduct, they do not always on how those norms should be identified. For instance, one theory is that states
are bound by customary international law. An opposite theory is that because the state is sovereign, the state must first
consent, before it can be bound by a particular rule of customary international law.

Positivist theory – a theory that people should follow laws formally passed by Congress, and that states should follow
rules approved by the UN Security Council or US General Assembly. If we apply the positivist theory, then it is necessary
that the text of the UN Charter must first authorize its use of force, but such use of source can be lawful.

Theory of the New Haven School – it is not the UN Charter which is determinative of legality, but the context in which
force is used, and the values that force seeks to advance or protect.

INTERNATIONAL LAW AS CULTURE

State as Principal Actors

States are principal actors in the international legal culture while individuals play only a very limited role. When
individuals act, they do so to effectuate the will of corporate structures, and thus act as tools of structures; in other
words, as officials of the state.

In the international legal culture, the principal players are the sovereign and independent states, while the secondary
players are the individuals.

The dominance of the state has led to the principle that collective and not individual responsibility accrues for violations
of international law. While collective responsibility is the rule, there are exceptions when individual responsibility is
involved, such as for war crimes, including crimes against peace, and crimes against humanity.

States need to act through individuals, who fall under the authority of national legal system. Hence, international law
must rely heavily on the domestic legal systems. Since national self-interest is the common ensign of the globe, the
result is to leave each state free o decide how to make international law binding within its territory, and to define its
relationship to national law.

Restrictions on State Freedoms

Within the system of international law, the latitude of freedom enjoyed by a state has undergone a process of evolution.
Three factors have served to account for restrictions on state freedoms: the network of international treaties; legal
restrictions on the right to use force; and the development of jus cogens, meaning peremptory norms which cannot be
derogated by international agreements among states.

Jus cogens comprises a body of law from Which no derogation is permissible, as opposed to jus dispositivum, or
dispositive law. States are duty-bound to refrain from entering into agreements providing for any activity prohibited by
jus cogens; in any event, the agreements are null and void.

Under the principle of effectiveness, international law accepts that only those claims and situations which are effective
can produce legal effects.

Most customary and treaty rules are binary, in that they confer rights, or impose duties, on pairs of states only, although
they may be general in character and are addressed to all the contracting parties.

After the First World War, binary duties evolved into what are called duties ergo omnes, i.e., duties owed to all other
contracting states, and accompanied by a corresponding right belonging to every other contracting state, whether or not
it has suffered any prejudice from the infraction of the duty.

International Law Today

International law today is marked by the coexistence of old and new patterns. The old patterns of international law
consist of: force as the primary source of legitimation; extreme decentralization of the legal functions; unfettered
freedom of states; and the unrestricted right to resort to armed violence. The new patterns of international law include:
creation of international organizations; and restraints on the use of force. At present, the international community is still
a divided world. Hence, depending on whether they apply to all states, only two groups of states, or one segment only
of the international community, international norms fall into three categories—universal, general, and particular.

Neff gives the following examples of controversial issues in international law –

1. The campaign for self-determination rights for various minority groups and indigenous peoples. Critics protest
this campaign as an encouragement of secession movements.

2. The demand for changes in the traditional human rights practices of non-Western peoples.
The articulated concerns over democracy, governance, and corruption.

INTERNATIONAL LAW AS LAW.

International law is law in reality because it is accepted as states, and it is usually obeyed.

Akehurst lists some factors, other than breaches of international law, which could cause international disputes:

 A genuine uncertainty about the facts. An example is the whether the National Liberation Front, or Vietcong in
South Vietnam, represented a spontaneous internal revolt, or subversion from North Vietnam.
 A genuine uncertainty about the law. An example is the issue of whether it is lawful for a state to nationalize
foreign property without compensation.
 A demand for a change in the law.
 An unfriendly but legal act. An example is an increase by a state of its tariffs on goods from another state, where
no special treaty provisions are involved.
 A violation of a body of rules not forming part of international law, such as international courtesy, ideals, or the
doctrine of spheres of influence. An example is the Soviet invasion of Czechoslovakia in August 1968.

The distinction between international law on the one hand, and non-legal rules applicable to international relations on
the other hand, is merely that a rule of international law is regarded as such by states. Yet the distinction is important
for two reasons. The first consequence is that a legal rule has more power.

The second consequence is that a legal rule has a stronger character. An example is the claim by mainland China that it
has a right under international law to expel the government of Taiwan.

The special nature of international legal rules has produced the special character of the international legal process. This
special character is a function of the lack of any formal Supranational legal system. As a result, most disputes on
international law are decided, not by international, but by national courts.

International law is useful for three reasons: consistency among domestic legal orders, or in international commercial
transactions; mutual benefit, as in the protection of diplomats, promotion of human rights, and limitation of weapons;
and pursuit of common international goals, as in international organizations, economics, and cooperation.

States observe international law under the consensus doctrine. "In a broad sense, states accept or consent to the
general system of international law, for in reality without them no such system could possibly operate.

Accordingly, states accept the reality of international law.

Proof that states accept international law is both attitudinal and empirical. States, through their Foreign Offices, as well
as the United Nations and other international organizations, practice international law daily, by using its methods,
procedures, and terminology. During international crises, states do not claim immunity from international law, but
instead debate their rights and duties under that law. When they depart from the legal norm, states justify their action
in legal terms.

If international law fails to resolve any dispute, this is no argument against its validity as a system of law. Any failure to
resolve disputed questions simply points to the need to develop law enforcement institutions. It is this lack of an
organized approach that has led some critics to call international law as "weak," when it is actually only novel.
International law is different from national law, because the former depends upon the voluntary acceptance of states
and other international subjects. This voluntary Character does not result in a disqualification from being called law. If
the essence of law is obligation, then, since it imposes obligations on states, international law is law, even if it does not
completely Conform to the configuration of national law.

International law is also criticized because of its deficiencies in enforcement. The first perceived deficiency is the low
chance of effective enforcement. But assured enforcement is not a fair test of the binding quality of law. Thus, national
law is law, not because of its capability for enforcement, but because of its capability for acceptance or tolerance. Thus,
national law is law, not because of its capability for acceptance or tolerance. Instead, international law is law because its
rules are promulgated in a manner accepted and recognized by states as authoritative.

The second perceived deficiency is the absence of a system of institutionalized enforcement, such as a police force or a
compulsory court. But international law is accompanied by contemporary enforcement purposes, notably in the Security
Council and the World Court. In recent times the Security Council has apparently adopted more “enforcement
resolutions” than in its entire previous history. It has imposed various forms of enforcement action:

 Military action
 Economic sanctions
 Diplomatic, political or social measures
 Creation of International Criminal tribunals for armed conflicts
 Resolution determining that a military coup d’etat

The main function of the Security Council is not law enforcement, but peace preservation. Yet in recent history. it has
exercised its powers in four different kinds of conflict: state aggression, state dissolution, civil warm and sponsorship of
aircraft terrorism.

HISTORICAL BACKGROUND

International law began in the West, some 400 years ago, Treaties have been discovered in ancient Mesopotamia, Egypt,
and other rival Middle Eastern powers. Before the birth of Jesus, India and China followed rules to create harmony
among their vast and various territories. It appears that treaty obligations were observed. But at this point, there was as
yet no international community of states.

In the sixth century BC, ancient Greek philosophy exalted critical and rational thinking constantly questioning and
analyzing man and nature. Thus, Greek thinking bequeathed to international law a technique of thinking which was later
adopted by the Roman Empire. The Romans embraced the Greek concept of natural law, which is the precursor of the
contemporary doctrine of human rights.
Naturalist v. Positivist Theories

During the Renaissance, the concept of an international community of separate and sovereign states emerged, thus
marking the beginnings of international law. Jean Bodin formulated the doctrine of sovereignty, Within the State, the
sovereign issued laws which were binding (except to him), provided they followed the laws of God and nature. The
sovereign was the supreme legislator.

Consequently, the state became viewed as the supreme power, and the state was regarded as above the law. The early
theories of international law were based on natural law.

One of the foremost advocates of natural law was St. Thomas Aquinas, who taught that natural law was part of God’s
law. This being so, las had conditional authority only, because if the law was unjust, it was invalid and need not be
followed.

Thus, natural law gave birth to international law. The founders of modern international law included:

 Francisco Vittoria, theology professor at the University of Salamanca, Spain. He wrote that since international
law was based on natural law which is universal, therefore International law covers not only Europeans, but also
non-Europeans.

 Francisco Suarez, a Jesuit and theology professor. His point was that international law is obligatory, because it is
based on natural law. Natural law provides. that agreements should be observed therefore this principle should
also be observed m international law.
 Hugo Grotius, Dutch, and called the father of international law. His main argument was that natural law is
founded exclusively on reason, and not on divine law. Accordingly, natural law is valid, even if God does not
exist. Grotius is mainly remembered today for his doctrine of freedom of the seas, which prohibits any state
from claiming ownership of any part of the high seas.

At this time, two main schools of thought on the basis of international law arose:

 The naturalist school, which regards natural law as moralistic system. It built a theoretical construction of
absolute values that were often distant from political reality.
 The positivist school, which rejects reliance on theory, and gives more importance to the actual practices of
states. It emphasizes modern practice instead of innate principles. It used the empirical method adopted by the
Renaissance by deriving ideas from experience, using the scientific method of experiment and verification:

From this philosophical attitude, it was a short step to reinterpreting international law not in terms of
concepts derived from reason but rather in terms of what actually happened between the competing states.
What states actually do was the key, not what states ought to do.

In the twentieth century, the colonial empires disintegrated. During the -colonial regime, the principles of international
law supported the power and domination of the West. The Third World states rejected those principles, and now
espouse the principles of sovereignty and equality of states, non-aggression, and non-intervention. However, the Third
World states are not homogeneous.

The Cold War ended, and the former Soviet Union states on the one hand, and the US and Western Europe on the Other
hand, acknowledged that both sides shared many common interests, New Soviet thinking now emphasizes the priority
of universal human values and the solution of global problems.

Contemporary disputes usually involve economic law, law of the sea, and human rights law. These problems are
exacerbated by globalization, meaning the extension of international law to other countries.
Many European conferences developed rules on the waging of wars, such as the series of Geneva Conventions.

The nineteenth century was the century of positivism in international law. Laws were commands issued from a
sovereign person or body, In the national system, law depended upon the will of the sovereign. It followed that in the
international system, international law depended upon the will of sovereign states.

Monalist vs. Dualist Theories

1. Monism claims that both national and international law are based on one fundamental principle. This principle is
either the concept of "right," or social solidarity, or the rule that agreements must be carried out (pacta sunt
servanda).
2. Dualism Claims that international law is not binding on a state without its consent.
In 1921, the Permanent Court of Justice wag established at The Hague; in 1946, it was succeeded by the International
Court of Justice.

But these advances in International law suffered a setback with the Second World War. It ended in 1946, and led to the
establishment of the United Nations, International law was no longer Eurocentric, and the UN was established in New
York.

The dominant majority of the international community now consists of Third World states. The Western minority still
retains overwhelming economic and military power.

PRINCIPLES OF THE INTERNATIONAL SYSTEM

The international system is a "network of relationships existing primarily, if not exclusively, between states recognizing
certain common principles and way of doing things [T]he international system is horizontal, consisting of over 190
independent states, all equal in legal theory (in that they all possess the characteristics of sovereignty) and recognizing
no one in authority over them."

States accept international law as necessary to achieve world peace, because world politics stresses competition,
conflict, and supremacy. International law is observed, so that the international community can reach toward the
ultimate value of world peace.

The principles of the international system are not promulgated by a unitary authority.

The principles are sourced from treaties, UN General Assembly resolutions, such as the 1970 Declaration on Friendly
Relations," declarations of states, statements by UN state representatives, and diplomatic practice.

Cassese gives the fundamental principles governing the international system, which also constitute the fundamental
rights and duties of states:

1. Sovereign equality of states

2. Non-intervention in the internal or external affairs of other states
3. Prohibition of the threat or use of force
4. Peaceful settlement of disputes
5. Respect for human rights
6. Self-determination of peoples
Sovereign Equality

The first principle—sovereign equality—is part of jus cogens, and it is the only principle in international relations which
is unqualifiedly supported by all groups bf states. It is succinctly described as "the linchpin of the whole body of
international legal standards, the fundamental premise on which all international relations rest.”

Sovereignty relates to jurisdiction over the national territory, and includes territorial integrity, political independence,
sovereign immunity for official state representatives, and munity for acts of state from the jurisdiction of foreign courts.
All states are treated in the same way. Thus, a state may by convention accept a derogation of its jurisdiction, Since after
all jurisdiction is part of sovereignty, it is a question whether such a derogation of jurisdiction indicates that the principle
of sovereign equality is not a peremptory norm.

One component of sovereignty is independence, the capacity of the state to provide for its own well-being and
development free from the domination of other states, providing it does not impair or violate their common rights.

The sovereignty of state yields to international jurisdiction over the protection of human rights and fundamental
freedoms. International action on these issues of human rights and racial oppression prevails over domestic jurisdiction.
Otherwise, the principle of state sovereignty is protected by the principle of nonintervention in the domestic affairs of a
state. Non-intervention prohibits aid to subversive elements aiming at violent overthrow of the government of a state,
and the use of force to deprive peoples of their identity.

Another component of the principle of sovereignty is the principle of the legal equality of states. It means equality of
legal rights and duties. States, irrespective of size or power, have the same juridical capacities and functions, and are
likewise entitled to one vote in the United Nations General Assembly. Equality applies only to legal personality and
capacity, not to creating law, since major states have more power over other states to help create law. Hence, the five
major powers, US, Russia, China, France, and UK, each possess a veto in the Security Council.

Non-intervention

The second principle, non-intervention in the internal or external affairs of other states, is part of jus cogens. To refrain
from entering into agreements with other States with a view to intervening or interfering in internal or external affairs
of other States. Implicit in the resolution is the intent to render null and void any agreement to the contrary.

What is prohibited is not only the use of force but also other forms of intervention, guch as economic pressure or
coercion, political destabilization, or facilitating domestic unrest. In sum, what is prohibited is both direct or armed, as
well as indirect or non-armed. coercive intervention. Thig expansion of the concept wag the result of efforts by Third
World and Eastern European states.

Prohibition of Force

The third principle—prohibition of the threat or use of force— is part of jus cogens. A general rule of international law
which binds even non-member states.

The threat or use of armed force, as well as of economic force, is prorscibed. Thus, conquest would not transfer a legal
title of sovereignty. An individual state may lawfully resort to force only in self-defense, but ptobably not in anticipatory
self-defense.

Peaceful Settlement of Disputes

The fourth principle—peaceful settlement of disputes—is now apparently part of jug cogens. However, if a state rejects
one specific mode of settlement proposed by the other litigant, the unwilling state cannot be obliged to agree. Neither
can it be so obliged, if it rejects the terms of a certain form of settlement. In that event, conceivably the UN Security
Council and General Assembly would have to exert pressure on the litigants to reach a peaceful settlement.

Respect for Human Rights

The fifth principle—respect for human rights—is part of jus cogens. Human rights include a proscription of racial
discrimination, apartheid, slavery, genocide, as well as provision for self-determination of peoples, civil and political
freedoms, trade union rights, and basic economic, social, and cultural rights.

The principle of respect for human rights conflicts with two other principles: sovereign equality of states, and non-
interference in the domestic affairs of other states. To minimize the conflict, the principle of respect for human rights is
taken to proscribe, not an isolated or sporadic occurrence, but a repeated and systematic violation of a basic right, such
as freedom from arbitrary arrest, freedom from torture, or the right to a fair trial.

Self-Determination

Self-determination is a qualified right" Nonetheless, the administering government is under a duty to allow the free
exercise of self-determination, and third states are bound by the duty to support the oppressed people with any form of
assistance short of armed troops.

Part of Jus Cogens

The six principles are part of jus cogens, which is defined as those rules and principles accepted and recognized by the
international community as a whole, as standards from which no derogation is permitted, and which can only be
modified by subsequent norms or principles of general international law having the same character. Thus, any treaty
contrary to jus cogens is null and void."

They are not supported by any specific machinery for implementation and enforcement.

The six principles may support or limit each other. One country may justify intervention on the argument that it is
supporting a legitimate regime, while another country may at the same time justify its own intervention with the
argument that it is supporting freedom fighters.

The Court can only regard the alleged right of intervention as the manifestation of a policy of force, such as has, in the
past, given rise to most serious abuses and such as cannot, whatever be the present defects in international
organization, find a place in international law.

The principle of non-intervention involves the right of every sovereign state to conduct its affairs without outside
interference; though examples of trespass against this principle are not frequent, the Court considers that it is part and
parcel of customary international law.

These principles share the following features:

 Since these principles are the result of conflicting views of states, some are ambiguous.
 These principles bind all actors in the international community. The only exception is the principle of sovereign
equality, which applies solely to states.
 These principles entitle actors in the international community to invoke then. Thus, they confer community
rights.
 These principles are jus cogens, meaning that they are standards of the international community, from which no
derogation is permitted. Thus, the principle of respect for human rights is jus cogens. Any treaty contrary to
these principles is null and void.
 These principles rely heavily on the UN for implementation and enforcement.