INTERNATIONAL

LAW
An INTRODUCTION
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• Definition
• National vs. international law
• History and development
• Sources
• Subjects
• Areas
• Enforcement
• Legal terms
 International law

• International law: a body of rules,

which regulate the behaviour of states
and other entities in their relations with
each other, at any given time
 International law

• Public
• Private international law, or conflict of laws
• Supranational law
 Public international law

• governs the relationship between states and

international entities
• (treaty law, law of the sea, international criminal
law, laws of war, international humanitarian law,
human rights law)
Private international law/Conflict of laws
• Part of national law
• Deals with disputes between individuals belonging to different
jurisdictions
Private international law/Conflict of laws
• addresses the questions of
• (1) which court may hear a case, and
• (2) the law concerning which jurisdiction applies to the issues in the case.
 Supranational law
• concerns regional agreements where the laws of nation states may be held
inapplicable when conflicting with a supranational legal system when that
nation has a treaty obligation to a supranational collective (e.g. the EU)
History and development of international law

• International law – relatively recent origin

• States needed to co-exist and it was necessary to establish limits of state
action
• The earliest expressions – rules of war and diplomatic relations
 History and development
• Today: states are in greater contact with each other,
• issues of international concern demand co-operation,
• domestic matters – subject to external review
 International vs. domestic law
• International law: decentralized; based on consent, flexibility;
reciprocity
• Domestic law: centralized and imposed
 International law
• International executive? Legislative?
• Judicature?
• International Court of Justice (ICJ): acceptance of its jurisdiction is based
on consent; not mandatory
SOURCES OF INTERNATIONAL LAW
Formal Sources

Treaties

International custom

General principles of law recognised by

civilised nations
Material Sources

Judicial decisions and teachings of jurists

 Hierarchy of sources
(Art. 38 (1) of the Statute of the ICJ)

• Any treaty provision existing between the parties to the dispute

must be applied
• If there is no treaty then a rule of international custom
• If there is neither a prevailing treaty provision nor a custom then
general principles
• In the absence of any of the foregoing, judicial decisions and
writings
 Customary international law
• The “common law” of the law of nations
• Consists of a vast body of rules that, until the 20th c., constituted the chief
body of international law
 Treaty
• A generic term used to refer to Convention, agreement, protocol and
exchange of notes
• An international agreement concluded between States in a written form
and governed by international law, whether embodied in a single
instrument or in two or more related instruments and whatever its
particular designation (The Vienna Convention on the Law of Treaties,
Art. 2(1), 1969)
 Treaty
• bilateral, multilateral
• Equivalent of legislation in municipal law
 Treaty
• Some treaties create law only for those states that are parties to them,
some codify pre-existing customary international law
• Ratification – the approval of the treaty by the head of state
 Observance and application of treaties
• Pacta sunt servanda
• „Every treaty in force is binding upon the parties to it and must be
performed by them in good faith”
 Relationship of customary international and
treaty law
• Customary international law and treaty law have equal authority
• If both exist regarding the disputed issue treaty law takes precedence
• A treaty law will not be given precedence over jus cogens
 Peremptory norms
(ius cogens ‘compelling law’)
• Fundamental principles of international law from which no derogation is
ever permitted
• A treaty provision contrary to ius cogens is void
• Apply erga omnes, accepted and recognised by the international
community and may be found either in treaty or custom
 Peremptory norms
(ius cogens ‘compelling law’)
• Prohibitions on:
• Waging aggressive war
• Crimes against humanity
• War crimes
• Genocide
• Maritime piracy
• Apartheid
• Slavery
• Torture
 General Principles of Law Recognised by
Civilised Nations
• „(1)Actual rules of international law which are of so broad a description
that they can be called principles
• (2)Maxims of universal application in domestic law which ought to apply
in the international sphere also.”
 General principles found in major legal
systems
• Nemo iudex in causa sua – noone should be a judge in his own case
The principle of reparation: the breach of an engagement involves an
obligation to make reparations”
• The principle of a state’s responsibility for all its agents
 Judicial decisions
• A decision of the Court has no binding force except between the parties to
the case and in respect of that particular case
• Stare decisis is not applicable in international law
• Previous decisions – examined and taken into account by ICJ
 Writings of jurists
• Writers had an important role in the early development of international
law
• Writers still make a contribution by highlighting, where appropriate, the
need for international regulation
 Other possible sources of international
law
• UN Resolutions
• Security Council Resolutions
• Regional Organisations (e.g. the Council of Europe)
• Soft law (non-legally binding international instruments
• Ius cogens
 Soft law
• Non-legally binding international instruments: e.g. treaties which contain general
obligations and non-binding statements of intent, codes of conduct, etc.; must be
in writing
• Examples: the Universal Declaration of Human Rights (1948)
• The Rio Declaration on the Environment and Development (1992)
• Advantage- it can assist in promoting compromise and prevent deadlock
• May become “hard law”, i.e. Universal Declaration provisions reflected in 1966
UN International Covenants
 International legal personality:
Definition
• The possession of international rights and duties as well as the procedural
capacity to seek redress for alleged violations and be held accountable for
non-fulfillment of duties
 Subjects of international law

• States – the primary and original subjects of international law;

• all states possess full international legal personality
 Requirements of statehood
• Permanent population
• Defined territory
• Effective government
• The ability to enter into relations with other States
 Territory
• Tangible evidence of state sovereignty
• The territory of a state includes:
• the land mass, subsoil, the water enclosed therein, the land under that
water, the sea coast to a certain limit, the airspace over the land mass and
the territorial sea