8/10/2019 The Nature of International Law - New

1/14

INTL401 INTERNATIONAL LAW

THE NATURE OF INTERNATIONAL LAW

8/10/2019 The Nature of International Law - New

2/14

THE NATURE OF INTERNATIONAL LAW

Definition

International law is the collection ofrules and norms that states and otheractors feel an obligation to obey intheir mutual relations and commonlydo obey

Conwey W. Henderson, UnderstandingInternational Law, 2010.

8/10/2019 The Nature of International Law - New

3/14

THE NATURE OF INTERNATIONAL LAW

Definition

In the past, international law was commonly

described as the law that regulates the

relations between states, amongst each otheror the system of legal norms regulating

mutual relations between states, or the set

of rules recognized by states and concerning

their external relations, or the set of rules

binding within the international community.

8/10/2019 The Nature of International Law - New

4/14

THE NATURE OF INTERNATIONAL LAW

An interesting definition of international law wasformulated in the 1970s by a Russian internationallawyer Prof. G. I.Tunkin:contemporary international law is the aggregate of

norms which are created by agreement between states ofdifferent social systems, reflect the concordant wills ofstates and have a generally democratic character,regulate relations between them in the process ofstruggle and cooperation in the direction of ensuring

peace and peaceful coexistence and freedom andindependence of peoples, and are secured whennecessary by coercion effectuated by states individuallyor collectively.

8/10/2019 The Nature of International Law - New

5/14

THE NATURE OF INTERNATIONAL LAW

Some examples of more recentdefinitions of international law include:o The system of law regulating the

interrelationship of sovereign states andtheir rights and duties with regard to oneanother. In addition, certain internationalorganizations (such as the United Nations),companies, and sometimes individuals (e.g.in the sphere of human rights) may haverights or duties under internationallaw.(Oxford Dictionary of Law, 1997, p.240)

8/10/2019 The Nature of International Law - New

6/14

THE NATURE OF INTERNATIONAL LAW

Today, international law refers to thoserules and norms which regulate the conductof states and other entities which at any

time are recognized as being endowed withinternational personality, for exampleinternational organizations and individuals,in their relations with each other (Rebecca

M.M. Wallace, International Law(Sweetand Maxwell, 1995, p. 1).

8/10/2019 The Nature of International Law - New

7/14

THE NATURE OF INTERNATIONAL LAW

International law is the body of rules which arelegally binding on states in their intercourse withother states. These rules are primarily those whichgovern the relations of states, but states are not the

only subjects of international law. Internationalorganizations and, to some extent, also individualsmay be subjects of rights conferred and dutiesimposed by international law (OppenheimsInternational Law, ninth edition, Volume I Peace,edited by Sir Robert Jennings and Sir Arthur Watts

(London: Longman, 1996), p. 4.

8/10/2019 The Nature of International Law - New

8/14

THE NATURE OF INTERNATIONAL LAW

The Roles of International Law:

To arrange for the cooperation mostactors wish to have most of the time;

To identify the membership of aninternational society of sovereignstates;

To regulate the competing interestsof the various actors and to carrytheit agreements into the future;

8/10/2019 The Nature of International Law - New

9/14

THE NATURE OF INTERNATIONAL LAW

To empower weaker states as theypress for change against the will ofthe powerful;

To promote justice;

To outlaw war.

8/10/2019 The Nature of International Law - New

10/14

THE NATURE OF INTERNATIONAL LAW

Is international law a real law?

o International law is practiced on a dailybasis in the Foreign Offices, national

courts and other governmental organsof states;The evidence is that reference tointernational law has been a normal part ofthe process of decision-making I. Brownlie

o States do not claim that they are abovethe law or that international law doesnot bind them;

8/10/2019 The Nature of International Law - New

11/14

THE NATURE OF INTERNATIONAL LAW

o The overwhelming majority ofinternational legal rules areconsistently obeyed;

It is probably the case that almostall nations observe almost allprinciples of international law and

almost all of their obligations almostall of the time (L. Henkin, HowNations Behave, p. 47).

8/10/2019 The Nature of International Law - New

12/14

THE NATURE OF INTERNATIONAL LAW

Basic characteristics of internationallaw:

International law has only a limited

number of developed legal institutions;

In comparison with national law,

international law is decentralised:

8/10/2019 The Nature of International Law - New

13/14

THE NATURE OF INTERNATIONAL LAW

Basic characteristics of international law

Decentralised international law-making;

Decentralised international lawenforcement;

Decentralised, voluntary international

law adjudication.

8/10/2019 The Nature of International Law - New

14/14

THE NATURE OF INTERNATIONAL LAW

Why is international law binding on

States and other actors?

The command theory; The consensual theory/consensus;

Natural law.