LAW731SEM

PRINCIPLES OF PUBLIC
INTERNATIONAL LAW

Topic 2 - History, Nature, Theories and Sources of International Law

LECTURE OVERVIEW
• Brief History of International Law
• Early history
• Rise of the nation-state
• Peace and Treaties of Westphalia
• World Wars and World Courts
• Post-War Era
• Modern Customary International Law
• Modern Treaty Law

• Nature of International Law

• Schools/Theories of International Law
• Sources of International Law
2
 EARLY HISTORY OF INTERNATIONAL
LAW
• The roots and beginnings reach back many thousands of years. Examples can be found of treaties in the
ancient world, such as the Treaty of Kadesh, pictured on the right between the Egyptians and the Hittites.
• The ancient Greek city-states developed rules which did not apply to non-Greeks, but nonetheless
contribute to modern international law.
• The Romans did not ascribe to International Law as they did not consider any other entities as “civilized”
which is why they generally never honoured their agreements, however, they did pass municipal laws
governing the interactions between private Roman citizens and foreigners. These laws, called the jus
gentium (as opposed to the jus civile governing interactions between citizens) codified some ideas of basic
fairness, and attributed some rules to an objective, independent "natural law." These jus gentium ideas of
fairness and natural law have survived and are reflected in modern international law.
• Early Islamic law's principles concerning military conduct and the treatment of prisoners of war under the
early Caliphate are considered precursors to international humanitarian law. The many requirements on
how prisoners of war should be treated included, for example, providing shelter, food and clothing,
respecting their cultures, and preventing any acts of execution, rape or revenge. Some of these principles
were not codified in Western international law until modern times. Islamic law under the early Caliphate
institutionalised humanitarian limitations on military conduct, including attempts to limit the severity of
war, guidelines for ceasing hostilities, distinguishing between civilians and combatants, preventing
unnecessary destruction, and caring for the sick and wounded.
 THE RISE OF THE NATION-STATE
• After the fall of the Roman Empire and the collapse of the Holy Roman Empire into independent
cities, principalities, kingdoms and nations, for the first time there was a real need for rules of
conduct between a large international community. Without an empire or a dominant religious
leadership to moderate and direct international dealings, most of Europe looked to Justinian's code of
law from the Roman Empire, and the canon law of the Catholic Church for inspiration.
• International trade was the real catalyst for the development of objective rules of behaviour between
states. Without a code of conduct, there was little to guarantee trade or protect the merchants of one
state from the actions of another. Economic self-interest drove the evolution of common
international trade rules, and most importantly the rules and customs of maritime law.
• As international trade, exploration and warfare became more involved and complex, the need for
common international customs and practices became even more important. The Hanseatic League of
the more than 150 entities in what is now Germany, Scandinavia, and the Baltic states developed
many useful international customs, which facilitated trade and communication among other things.
The Italian city-states developed diplomatic rules, as they began sending ambassadors to foreign
capitals. Treaties—agreements between governments intended to be binding—became a useful tool
to protect commerce. The horrors of the Thirty Years' War, meanwhile, created an outcry for rules of
combat that would protect civilian communities.
 PEACE OF WESTPHALIA
• The Westphalian treaties of 1648 were a turning point in establishing the principle of state sovereignty as a
cornerstone of the international order. However the first attempts at formulating autonomous theories of
international law occurred before this, in Spain, in the 16th century. Most prominent among the early
theorizers were the Roman Catholic theologians Francisco de Vitoria and Francisco Suárez. Suárez is
especially notable in this regard in that he distinguished between ius inter gentes and ius intra gentes which
he derived from ius gentium (the rights of peoples). Ius inter gentes corresponds to modern international law.
In 1625, Hugo Grotius followed with the first systematic treatise on international law, “de iure belli ac
pacis”, which dealt with the laws of war and peace. One important aspect of Grotius's treatment of
international law is that he no longer bases it exclusively upon natural law, but also accepts that states among
themselves can also create binding rules of law (ius voluntarium).
• Still, in the 17th and 18th centuries, the idea of natural law as a basis for international law remained
influential, and were further expressed in the works of Samuel von Pufendorf and Christian Wolff. Yet, in the
second half of the 18th century, a shift occurs towards positivism in international law. In addition, the idea of
international law as a means for maintaining international peace is challenged due to the increasing tensions
between the European great powers (France, Prussia, Great-Britain, Russia and Austria). This tension
between legal norms and political imperatives is well reflected in the century's most important treatise on
international law, Emer de Vattel's Du Droit des Gens (1758). At the end of the century, Immanuel Kant
believes that international law as a law that can justify war does not serve the purpose of peace anymore, and
therefore argues in “Perpetual Peace” (Zum Ewigen Frieden, 1795) and the “Metaphysics of Morals”
(Metaphysik der Sitten, 1797) for creating a new kind of international law.
WORLD WARS AND WORLD COURTS
• World War I
• League of Nations and Permanent Court of International Justice
• World War II
• United Nations and the International Court of Justice
 POST-WAR ERA
• After World War II, as after the First World War and the Thirty Years' War, there was a strong desire
to never again endure the horrors of war endured by the civilian populations. The League of Nations
was re-attempted through another treaty organization, the United Nations.
• The postwar era has been a highly successful one for international law. International cooperation has
become far more commonplace, though of course not universal. Importantly, nearly two hundred
nations are now members of the United Nations, and have voluntarily bound themselves to its charter.
Even the most powerful nations have recognized the need for international cooperation and supports,
and have routinely sought international agreement and consent before engaging in acts of war.
• International law is, of course, only partly about the conduct of war. Most rules are civil, concerning
the delivery of mail, trade, shipping, air travel, and the like. Most rules are obeyed routinely by most
countries, because the rules make life easier for all concerned. The rules are rarely disputed. But some
international law is extremely political and hotly debated. This includes not just the laws of warfare
but also such matters as fishing rights.
MODERN CUSTOMARY INTERNATIONAL
LAW
• An important development in modern international law is the concept of "consent." Before World
War II, a nation would not have been considered to be bound by a rule unless it had formally agreed
to be bound by it, or it was already customarily abiding by that rule. Now, however, merely
consenting to an international practice is sufficient to be bound by it, without signing a treaty.
• An evolution of the positivist approach of Grotius, the concept of consent is an element of
customary international law. Customary international law is essentially what states actually do, plus
the opinio juris of what states believe international law requires them to do.
• Customary international law applies to every country, regardless of whether they have formally
agreed to it. At the same time, all countries take part in forming customary international law by their
practices and decisions. As new rules arise, countries accept, reject or modify them. When most
countries are following a rule, everyone else will be held to it. Therefore, doing nothing is the same
as consenting. Nations that did not take action may find themselves bound by an international law
that is not to their advantage.
• Customary international law can be overruled, however, by a treaty. For this reason, much
customary international law has been agreed to formally by treaties between nations.
 MODERN TREATY LAW
• Treaties are essentially contracts between countries. They are agreements by which the parties intend to be bound. If
treaties are broken, their effectiveness is weakened because there is no guarantee that future promises will be kept. So
there is a strong incentive for nations to take treaties very seriously.
• Modern nations engage in a two-step procedure for entering into treaties. The first step is signing the treaty. Being a
signatory to a treaty means that a country intends to enter into the agreement. The second step is ratifying the treaty. A
country that has ratified a treaty has gone beyond merely intending to enter into the agreement, and is now bound by it.
This is a critical distinction, and sometimes a point of confusion. A nation may be a signatory to a treaty for many years
without ever having ratified it.
• Each country ratifies treaties its own way. The United States requires the two-thirds support of the Senate, the upper
body of its legislature, for a treaty to be ratified; both the executive and the legislature must agree. In Canada, on the
other hand, ratification is strictly an executive action, and no parliamentary approval is required before the nation is
bound. In Fiji, section 51 of the Constitution requires parliamentary approval before a treaty can bind the State.
• Modern treaties are interpreted according to the 1969 Vienna Convention on the Law of Treaties. This convention is so
widely accepted that even nations that are not parties to the convention follow it. The convention's most important and
sensible rule is that a treaty should be interpreted according to the plain meaning of its language, in the context of its
purpose, and in good faith. This prevents much squabbling and unnecessary nit-picking. It also makes treaty authors
spell out what they are trying to accomplish, to make interpretation easier, in a non-binding "preamble."
• In the modern world, international law is contested for its inability to enforce its rulings. This leads us to question the
true nature of international law – is it really law at all?
NATURE OF INTERNATIONAL LAW
• Is it truly law ie binding in nature or is it purely moral ie voluntary?
• Austin’s imperative or command theory; according to Austin, positive law
has 3 features:
(i) It is a type of command;
(ii) It is laid down by a political sovereign; and
(iii) It is enforceable to sanction.

• If we apply Austin’s definition of law, international law is not truly law

since there is a distinct lack of punitive power.
• Austin called international law, “positive international morality” and
likened it to rules governing clubs or soceities.
NATURE OF INTERNATIONAL LAW
• Austin gave explanations for why he viewed international law this way.
• But there are some criticisms of his analysis.
• Let us compare Austin with another jurist, Oppenheimer.
• Oppenheimer defines law as “a body of rules for human conduct within a
community which by common consent of this community shall be enforced by an
external power. The main features of this definition are:
• There must be a community;
• There must be a body of rules for human conduct; and
• There must be a common consent of this community for an external power to enforce the rules.

• Unlike with Austin, Oppenheimer’s definition identifies international law as true

law.
NATURE OF INTERNATIONAL LAW
• Unlike with Austin, Oppenheimer’s definition identifies international law
as true law; but this law is undeniably weak by comparison with domestic
ie national laws.
• The sheer volume of international agreements makes even identifying the
relevant international law a challenge.
• Consent is a major concept in international law and it is difficult to enforce
even in the best of times.
• In times of war or open conflict, international law is frequently violated.
THEORIES/SCHOOLS OF
INTERNATIONAL LAW
• It can be said that there are 3 main schools of thought or theories about
international law:
1. Naturalist;
2. Positivist; and
3. Eclectic or Grotian Theory.
THEORIES/SCHOOLS OF
INTERNATIONAL LAW
1. Naturalism
• Based on the concept of natural law or “jus naturae”
• a higher law or authority: God; or Morals; or reason.
• Many early international legal theorists were concerned with axiomatic truths thought to
be reposed in natural law. 16th century natural law writer, Francisco de Vitoria (1486-
1546), a professor of theology at the University of Salamanca, examined the questions
of the just war, the Spanish authority in the Americas, and the rights of the Native
American people.
• Other early naturalists include Francisco Suarez (1548-1617); and Sammuel Pufendorf
(1632-1694).
• Grotius, widely considered the founder or “father” of the “law of nations” also
considered natural law as a central aspect of international law.
 THEORIES/SCHOOLS OF
INTERNATIONAL LAW
1. Criticism of the Naturalist approach
• Vague: to the point that it became “meaningless” according to 19 th century writers like
Schwarzenberger and Brown.
• Extreme naturalism denies some of the more practical rules of positive law; appearing
aloof and disconnected from reality.
• As per Kelsen, duties and rights presuppose the existence of a man-made legal system.
• Natural law better suited to the reality of the ancient rather than modern world;
particularly after the industrial revolutions.
• Despite these criticisms, it cannot be denied that it played an important role in the
development of law generally and specifically regarding international law, where it laid
the ethical and moral foundation vis-à-vis international human rights and humanitarian
law.
 THEORIES/SCHOOLS OF INTERNATIONAL LAW
2. Positivism
• Positivist theory based on three main premise:
i. The State is a metaphysical reality, having a value and significance of its own;
ii. The State has a will of its own; and
iii. The State has complete sovereignty and authority.

• Holds that international law based entirely on treaty and customs, rather than human nature, reason and
justice.
• Views IL as the aggregate of positive rules by which States consent to be bound, exclusive of natural law
concepts such as reason and justice. Therefore only those international law principles consented to by the
State are “real” law.
• Aleberuco Gentilis (1552-1608) and Ricahrd Zouche (1590-1660) said to be originators o this school.
• Bynkershoek (1673-1743) another leader, particularly emphasized the “principle of Bona Fides” as being the
theoretical foundation of all agreements between States. In “Quaestionum juris publici”, he emphasized the
practice of modern States, custom and treaties, completely ignored the “law of nature” and held:
1. That the rules of IL were established through the consent of the States; and
2. That all agreements between States were the products of their sovereign wills.
 THEORIES/SCHOOLS OF INTERNATIONAL LAW
2. Criticism of Positivist School
• Not all IL rules were derived from Customs and Treaties. Some were acceded to or derived
from the general principles of law recognised by “civilized” nations.
• The premise of the State as a metaphysical reality and existence of its will, is purely
metamorphic. The will is not that of the State but rather the will of the individuals forming
that State.
• Regardless of consent, States are still bound by certain peremptory norms. In practice, it
depends not so much on the consent of particular state, but the principles generally
recognised by the community or society of states.
• States are sometimes bound by International Law against their will.
 THEORIES/SCHOOLS OF INTERNATIONAL LAW
3. Eclectic or Grotian Theory
• . Between the classical naturalists and classical positivists stood ecelcticists or Grotians,
who, like Grotius, attempted to harmonise the extreme positions of naturalism and
positivism.
• Depending on the jurist, they could tend more to naturalism or more to positivism,
although more of them tended to the naturalist school. Representative eclectic jurists such
as Wolff and Vattel were essentially naturalists.
• Vattel accepted the simultaneous acceptance of two tiers of law – one natural and one
positivist. Thus according to this theory, International Law does derive from natural law
and consent. Consent is the basis, but not the sole basis of International law.
 SOURCES OF INTERNATIONAL LAW
• As we have seen in the preceding slides, sources of international law have been influenced by a range of
political and legal theories. During the 20th century, it was recognized by legal positivists that a sovereign
state could limit its authority to act by consenting to an agreement according to the contractual principle of
pacta sunt servanda. This consensual view of international law was reflected in the 1920 Statute of the
Permanent Court of International Justice, and remains preserved in Article 7 of the ICJ Statute.
• The sources of international law applied by the community of nations are listed under Article 38 of the
Statute of the International Court of Justice, which is considered authoritative in this regard:
1. International treaties and conventions;
2. International custom as derived from the "general practice" of states; and
3. General legal principles "recognized by civilized nations".

• Additionally, judicial decisions and the teachings of prominent international law scholars may be applied as
"subsidiary means for the determination of rules of law".
• Many scholars agree that the fact that the sources are arranged sequentially suggests an implicit hierarchy of
sources. However, the language of Article 38 does not explicitly hold such a hierarchy, and the decisions of
the international courts and tribunals do not support such a strict hierarchy. By contrast, Article 21 of the
Rome Statute of the International Criminal Court clearly defines a hierarchy of applicable law (or sources of
international law).
 SOURCES OF INTERNATIONAL LAW
1. International treaties and conventions
International treaty law comprises obligations expressly and voluntarily
accepted by states between themselves in treaties. The Vienna Convention on
the Law of Treaties (‘VCLOT’) defines a treaty as follows:
• "treaty" means an international agreement concluded between States in
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.
 SOURCES OF INTERNATIONAL LAW
1. International treaties and conventions
• The definition from the VCLOT, has led case-law to define a treaty as an international agreement that
meets the following criteria:
1. Criterion 1: Requirement of an agreement, meetings of wills (concours de volonté)
2. Criterion 2: Requirement of being concluded between subjects of international law: this criterion excludes
agreements signed between States and private corporations, such as Production Sharing Agreements. In the 1952
United Kingdom v Iran case, the ICJ did not have jurisdiction for a dispute over the Anglo-Iranian Oil Company
being nationalized as the dispute emerged from an alleged breach of contract between a private company and a State.
3. Criterion 3: Requirement to be governed by international law: any agreement governed by any domestic law will not
be considered a treaty.
4. Criterion 4: No requirement of instrument: A treaty can be embodied in a single instrument or in two or more related
instruments. This is best exemplified in exchange of letters - (échange de lettres). For example, if France sends a
letter to the United States to say, increase their contribution in the budget of the North Atlantic Alliance, and the US
accepts the commitment, a treaty can be said to have emerged from the exchange.
5. Criterion 5: No requirement of designation: the designation of the treaty, whether it is a "convention", "pact" or
"agreement" has no impact on the qualification of said agreement as being a treaty.
6. Unwritten Criterion: requirement for the agreement to produce legal effects: this unwritten criterion is meant to
exclude agreements which fulfill the above-listed conditions, but are not meant to produce legal effects, such as
Memoranda of Understanding.
 SOURCES OF INTERNATIONAL LAW
1. International treaties and conventions
• Where there are disputes about the exact meaning and application of national laws, it is the
responsibility of the courts to decide what the law means.
• In international law, interpretation is within the domain of the states concerned, but may
also be conferred on judicial bodies such as the International Court of Justice, by the terms
of the treaties or by consent of the parties.
• Thus, while it is generally the responsibility of states to interpret the law for themselves,
the processes of diplomacy and availability of supra-national judicial organs routinely
provide assistance to that end.
 SOURCES OF INTERNATIONAL LAW
1. International treaties and conventions
The Vienna Convention on the Law of Treaties, which codifies several bedrock principles of
treaty interpretation, holds that a treaty "shall be interpreted in good faith in accordance with
the ordinary meaning to be given to the terms of the treaty in their context and in the light of
its object and purpose." This represents a compromise between three different theories of
interpretation:
• The textual approach, a restrictive interpretation that looks to the "ordinary meaning" of
the text, assigning considerable weight to the actual text.
• The subjective approach, which takes into consideration factors such as the ideas behind
the treaty, the context of the treaty's creation, and what the drafters intended.
• The effective approach, which interprets a treaty "in the light of its object and purpose",
i.e. based on what best suits the goal of the treaty.
 SOURCES OF INTERNATIONAL LAW
1. International treaties and conventions
The rules on the previous slide are general rules of interpretation, and do no preclude the
application of specific rules for particular areas of international law, see the cases below:
• Greece v United Kingdom [1952] ICJ 1, ICJ had no jurisdiction to hear a dispute between
the UK government and a private Greek businessman under the terms of a treaty.
http://www.worldlii.org/int/cases/ICJ/1952/1.html
• United Kingdom v Iran [1952] ICJ 2, the ICJ did not have jurisdiction for a dispute over
the Anglo-Iranian Oil Company being nationalized.
http://www.worldlii.org/int/cases/ICJ/1952/2.html
• Oil Platforms case (Islamic Republic of Iran v United States of America) [2003] ICJ 4,
rejected dispute over damage to ships which hit a mine.
http://www.worldlii.org/int/cases/ICJ/2003/4.html
 SOURCES OF INTERNATIONAL LAW
2. International custom
• Customary international law is derived from the consistent practice of States accompanied by opinio juris,
i.e. the conviction of states that the consistent practice is required by a legal obligation.
• Judgments of international tribunals as well as scholarly works have traditionally been looked to as
persuasive sources for custom in addition to direct evidence of state behavior. Attempts to codify
customary international law picked up momentum after the Second World War with the formation of the
International Law Commission (‘ILC’) under the aegis of the UN.
• Codified customary law is basically the codification of the underlying custom by agreement through
treaty. For states not party to such treaties, the work of the ILC may still be accepted as custom applying to
those states. General principles of law are those commonly recognized by the major legal systems of the
world. Certain norms of international law achieve the binding force of peremptory norms (jus cogens) as
to include all states with no permissible derogations.

• Colombia v Perú (1950), recognizing custom as a source of international law, but a practice of giving asylum was not part of
it.
• Belgium v Spain (1970), finding that only the state where a corporation is incorporated (not where its major shareholders
reside) has standing to bring an action for damages for economic loss.
 SOURCES OF INTERNATIONAL LAW
3. General Principles of Law
• The scope of general principles of law, to which Article 38(1) of the Statute of the ICJ refers,
is unclear and controversial but may include such legal principles that are common to a large
number of systems of domestic law. Given the limits of treaties or custom as sources of
international law, Article 38(1) may be looked upon as a directive to the Court to fill any gap
in the law and prevent a nonliquet situation by reference to the general principles.
• The significance of general principles has undoubtedly been lessened by the increased
intensity of treaty and institutional relations between states. Nevertheless, the concepts of
estoppel and equity have been employed in the adjudication of international disputes.
• However, the principles of estoppel and equity in the international context do not retain all the
connotations they do under common law. The reference to the principles as "general" signify
that, if rules were to be adapted from domestic law, they should be at a sufficient level of
generality to encompass similar rules existing in many legal systems. Principles of national
law should be regarded as sources of inspiration rather than as sources of rules of direct
application.
TUTORIAL QUESTIONS

1) One major difference between public international law and

domestic (or national law) is the concept of “consent”. From
you own understanding, explain why proceedings in the ICJ
cannot be initiated without the parties’ consent.
2) Identify the major similarity between contract law and
international law. Reference to sources of international law may
be useful in answering this question.
REFERENCES - PRIMARY
1. Cited Cases are available online on www.bailii.org ,
www.paclii.org , www.worldlii.org , www.canlii.org/en ,
www.austlii.edu.au or www.commonlii.org as the case
may be.
REFERENCES – SECONDARY/TERTIARY
1. Professor Rebecca Wallace and Olga Martin-Ortega,
International Law (9th Ed), London (2020).
2. Course Descriptor, LAW731Sem Principles of Public
International Law, Fiji National University (2021).
3. Dr Kathryn Serrano, LW312 Public International Law,
University of the South Pacific (2011).
4. https://thefactfactor.com/facts/law/civil_law/public-intern
ational-law/nature-of-international-law/14902/
5. https://thefactfactor.com/facts/law/civil_law/public-intern
ational-law/schools-of-international-law/14905/