The Nature of International Law

and the International System

Bahria University, Islamabad Campus

International Law- (Lecture - I)
 Definition of Law
The term “Law’ denotes different kinds of rules
and Principles regulates human
conduct/behaviour.

Also means Acts/ Statutes,

Regulations/Ordinances/ Morality and Reason
etc.

Bahria University, Islamabad Campus

International Law- (Lecture - I)
 Definition of Law
Importance of law?

Bahria University, Islamabad Campus

International Law- (Lecture - I)
 Importance of Law

• Keep order in society, without laws, life

would be chaotic.

• Protect the rights of individuals

• A way to settle disputes or disagreements

Bahria University, Islamabad Campus

International Law- (Lecture - I)
 Importance of Law

Legislation?

Bahria University, Islamabad Campus

International Law- (Lecture - I)
Defining International Law

What is International Law?

Can you define it?

Oppenheim’s Definition:

International Law is a body of customary

and treaty rules which are considered
legally binding by States in their intercourse
with each other.

Problem with Oppenheim

Definition?
Starke’s Definition:
That body of law which is composed for its greater part of the
principles and rules of conduct which States feel themselves
bound to observe, and therefore, do commonly observe in
their relations with each other, and which includes:

a) The rules of law relating to the functioning of international

institutions or organisations, their relations with each other,
and their relations with States and other individuals.

b) Certain rules of law relating to individuals and non-state

entities so far as the rights and duties of such individuals and
non State entities are the concern of the international
community.
International law
• Primary focus on rights and obligations of States and
International Organizations. Not individuals or NGOs.
• I say primary because the last several decades have seen
a growing importance of the individual in international
law.
 Contrasting Public IL from
Private IL
Private International Law or Conflict of
Laws:

Concerns matters that fall under the

jurisdiction of two or more different states

A set of rules which determine which legal

system and jurisdiction applies in a legal
dispute.
Significance/Role of IL

1. It facilitates the functioning of the International

Community. Rules of International Law cover
almost every facet of inter-state and
international activity.

2. It controls States by regulating their conduct

with other States (e.g. Use of Force). With
individuals (i.e. their own citizens – human
rights law, extradition).
Significance/Role of IL

3. Protection of Individuals. International Human

Rights law (IHRL), the concept of ICC

4. Dispute Resolution
Pacific methods: ICJ, Arbitration, Good offices etc
Enforcing International Law
The hallmark of any legal system is that its rules
are capable of being enforced against malefactor.

International law capacity to enforce itself?

Enforcing International Law
• The Security Council:
UNSC decide what measures shall be taken in
accordance with Articles 41 and 42, to maintain or
restore international peace and security.

• Loss of legal rights and privileges

• Judicial enforcement
Criticism of Int’l law

Legal Jurists and practitioners often deride and

disregard IL. They have questioned Int’l Law
• Existence of any set of rule?
• Effectiveness
• Entitlement to be called law?
Existance of any set of rules?
• Unlike national system, where legislature and courts
exist, International system sometimes fall short of
proper legislation

• National System > Constitution > legislative power

• Grey Areas in Int’l system
• However, National System also lack rules and
regulation on newly evolved idea/concepts, i.e,
Crypto/cyber
• Comperative Analysis!
Effectiveness of IL?
Effectiveness of IL
• International law is overwhelmingly obeyed by
most States most of the time. The reason for its
seeming ineffectiveness is that the incidents of
failure are headline news and are brought to our
attention – Genocide of Kurds, Kashmir Issue,
Rwanda, Bosnia, Iraq Invasion, etc.
• Yet criticism is still significant regarding the
ineffectiveness of IL. Primarily that it lacks
sanctions for violators.
Effectiveness of IL
What happens if compliance is not voluntary?
1. High Political Cost and Diplomatic Alienation:
i. Loss of influence and trust may reduce trade,
foreign aid, or cause other States to refuse to
enter into negotiations.
ii. Internal Pressures: political parties, lobbyists,
think tanks, pressure groups, civil society, etc.
2. Reciprocal Action
3. Loss of legal rights and moral superiority
Is International Law a positive morality or true
international law?
Is IL really ‘Law’?
Two distinct schools
o Positivist School: Int’l Law a positive morality
o Historical View: As much a legal system as
any other municipal legal system might be
Is IL really ‘Law’?
Positive school: Supported by John Austin and Holland
Austin: International law is not a law but rules of
morality governing international relation between
states.

Austin’s Definition of Law:

I. Command /body of rules
II. Given by determinate superior authority
III. Enforced by the sanction of physical force
Is IL really ‘Law’?
Arguments:
• No agency for international legislation
• No organized force to enforce Intl law
• Int’l system lack a determinate impartial arbitrator
Is IL really ‘Law’?
Historical School
Oppenheim Definition of Law:
Three Essentials
1. A community
2. Body of Rules
3. Consent of that community for the enforcement of those
rules
Evidence of IL as a System of Law
1. States believe that International Law Exists (Pollock’s
Practical test)
2. IL is practiced on a daily basis in Foreign Offices around the
world.
3. International Organizations such as the UN, WTO, IAEA, etc.
exist and function due to International Law (Int’l
Agreements).
4. IL is discussed and applied in National Courts:
1. Reko Diq – Bilateral Investment Treaties, International
Arbitration (ICSID, etc.)
2. PHC Judgement on Drones
Evidence of IL as a System of Law
1. States believe that International Law Exists (Pollock’s
Practical test)

”Pakistan strongly condemns and completely rejects the Indian

Government's attempts to further deprive the people of Indian
Occupied Jammu and Kashmir through Jammu and Kashmir
Grant of Domicile Certificate (Procedure), 2020,” the Foreign
Ministry said in a statement.
It said the new law “is illegal and in clear violation of the
relevant United Nations Security Council (UNSC) resolutions,
international law, including the 4th Geneva Convention, and
bilateral agreements between Pakistan and India.”
Evidence of IL as a System of Law
Barrack Obama statement:
Under domestic law, and international law, the
United States is at war with al-Qaeda, the Taliban,
and their associated forces. We are at war with an
organization that right now would kill as many
Americans as they could if we did not stop them
first. So this is a just war—a war waged
proportionally, in last resort, and in self-defense.
To conclude…
International law is a true law but weak one!
THANK YOU