Unit 1 Nature of International Law

8/17/2019 Unit 1 Nature of International Law

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Unit 1: Nature of

International LawMiss E Siang’andu


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Learning Outcomes1. The development of International Law (IL

!. "ature of International Law

#. Legal persons$su%&ects of IL


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The 'evelopment of International

Law IIL dates %ac) to the 1*th centur+, originated in Europe

although communities of states regulated %+ law hadpreviousl+ e-isted in hina, the /ree) cit+ states, Indianstates 0 ersia in the dealings of these entities withoutsiders

IL was initiall+ created to govern diplomatic relations,commercial, militar+ 0 other issues in relation to hristianit+among the European states.

2nother starting point for other scholars is the Mesopotamiancommunities who concluded treaties as earl+ as #1334

Other scholars prefer to %egin with 5oman law

5oman law ma)es a distinction %etween 6us naturale 0 6usgentium


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Law II 6us naturale 7 (/od given law civil or natural

law for 5oman citi8ens

6us gentium 7Law of nations 7 whichconcerned relations of 5omans with non5omans

Thus was )nown as Law of nations until

6erem+ 4entham introduced the term9International Law’ in 1:;3

estphalia 0 the modern state

s+stem as the date mar)s the %eginning of


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Law III1*=; eace of >estphalia mar)ed the end of the

thirt+ +ear war It was the acceptance of 6ean 4oding9s thin)ing that kings and their states should

enjoy their sovereignty as legal equals & able toact independently of each other.

ritical rule that emerged was that states could notinterfere with one another in internal matters for

religious or other reasons.

IL was ?rst e-tended %e+ond Europe at the end of the1;th centur+ to states which were re%elling againstEuropean colonies particularl+ "orth and South2merica respectivel+


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Law III1@1; 0 the emergence of international

organisation 7 League of "ations

rohi%ition of >ar League of "ations ovenant1@1@ 0 aris act 1@!;

2rticle I

The High contracting parties solemnly declare inthe names of their respective peoples that theycondemn recourse to war for the solution ofinternational controversies, renounce it as aninstrument of national policy in their relations withone another.


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Law IAermanent ourt of International 6ustice

>>II

The Bnited "ations 0 the International ourt of 6ustice

The B" harter

2rticle !(=

All members shall refrain in their internationalrelations from the threat or use of force against theterritorial integrity or political independence of anystate or in any other manner inconsistent with the purposes of the United Nations


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Law A"urem%urg 0 To)+o

'ecolonisation

The old >ar, "uclear weapons and the %ipolar world

IL has continued to developed recentl+ seeingthe increase of international criminal courts

and tri%unals set up to tr+ individuals forviolation of fundamental rights.


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factors contri%uting to the

development of modern IL

Industrial Revolution

Developments in trade and communication

Spread of democracy and nationalism andtheir impact on international law

The twentieth century

First World War and the Treaty of Versailles

League of Nations its legacy The world order after the World War II


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"ature of International Law I e!nition

International Law is the s+stem of principles,

rules and norms which %oth esta%lishes thestatus of and governs relations %etween,those entities having international personalit+

i"on de?nes IL as a s+stem of rules and

principles that govern the internationalrelations %etween sovereign states and otherinstitutional su%&ects of international Law.


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"ature of International

Law II


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Law IIIInternational organisations 0 individuals ma+ also

%e su%&ects of IL

IL graduall+ developed from the second half of the

middle ages. This is %ecause of a 'utch &urist


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Law IArivate international law are rules developed

%+ states as part of their domestic law toresolve pro%lems %etween private personsinvolving a foreign element (i.e contracts ofsale %etween persons in diGerent countries ormarriages %etween persons from diGerentlegal s+stems

IL pla+s a role in facilitating internationalrelations

IL is ver+ much intertwined with politics thus

IL cannot e-ist in isolation from the politicalfactors o eratin in the s here of international


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#raditional view of IL The traditional conception of IL as e-clusivel+ laws of nations for e-ampleHestla)e stated 9 IL is a %od+ of rules prevailing %etween

states’In 1@3 Oppenheim in wrote 9states solel+ and e-clusivel+ are su%&ects of IL’

In 1@!: the ermanent ourt of International 6ustice (I6 in attempting to

settle a dispute %etween rance and Tur)e+ 7 The Lotus ase I6 Ser 2, "o13 (1@!:.

In passing the &udgement, court felt it necessar+ to set down the parametersof IL thus heldH

9IL governs relations %etween independent states. The rules of law %indingupon states therefore emanate from their own free will as e-pressed in

conventions or %+ usages accepted as e-pressing principles of lawJ’


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%odern iew I'espite the fact that tradition IL has %een developed as a

s+stem of rules 0 principles intended to govern the relations%etween sovereign states IL has developed %e+ond that

The esta%lishment of the League of "ations after the irst >orld>ar mar)ed a shift in the approach to international relations. This was further developed %+ the esta%lishment of the Bnited"ations Organisation in 1@=

The "urem%erg >ar rimes tri%unal in 1@=* raised Kuestions ofinternational o%ligations of individuals

Bniversal 'eclaration of


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%odern iew IIIn 1@=@ the International ourt of 6ustice was as)ed %+ the

/eneral 2ssem%l+ of the B" for its option on matters arisingout of the assassination of the B" representative in 6erusalem

In course of &udgement ourt statedH

9J..the Bnited "ations Organisation is a su%&ect ofinternational law and capa%le of possessing internationalrights and duties, and J has capacit+ to maintain its rights %+%ringing international claims’ 7 5eparations for In&uriesSuGered in the Service of the Bnited "ations case D1@=@F I6

5ep at p 1:=.

It has %ecome clear that it is no longer adeKuate to discuss ILin terms of the s+stem of rules governing solel+ the relations%etween states.


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>hat is an entit+ having

International ersonalit+i.e. a su%&ect of International Law

States

International organisations 7 e.g. the Bnited"ations

ontroversial su%&ects 7 e.g. orporations 0non governmental Organisations ("/Os

Individuals Individuals as su%&ects ofinternational law

international criminal responsi!ility

international protection of human rights


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The haracteristics of International

LawS+stem of sovereign eKual states

'ecentralised

S+stem depends primaril+ on consent"o International onstitution

"o International legislature

"o compulsor+ court &urisdiction

"o formal s+stem of sanctions possi%lee-ception of B" Securit+ ouncil


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Is international Law real law I

uestions surrounding the status of International Law as lawcan %e traced %ac) to 6ohn 2ustin in his %oo) 7 The rovinceof 6urisprudence 'etermined where he descri%ed law as%eing commands

Law has to %e created %+ a sovereign

2ustin goes further to claims that IL is not reall+ law%ecause of the a%sence of the sovereign

It cannot %e enforced hence IL onl+ imposes duties which

can onl+ %e enforced %+ moral sanction.2%sence of a central government (world government lac)

of sanctions readil+ availa%le to punish transgressors as isthe case in countries (4ull 1@@

ountries cannot %e arrested 0 put into &ail for violation of IL


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Is international Law real law II Nes IL is evident through the %ehaviour of states in their

interaction with each other

States o%e+ the law %ecause it is in their interest to do so

IL is not %ased on commands %ac)ed %+ sanctions %utinstead %ased on voluntary co$pliance

The fact that there is an a%sence of sanctions does notma)e IL not real law

i.e under municipal law people o%e+ the law %ecause the+

%elieve it is in their enlightened selfinterest to do. The national government does not force ever+ citi8en to

o%e+ ever+ law. If then was the case 7 need to hire morepolice.


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>ea)ness of IL The demands that IL ma)es for states are not pleasant 7

hence states turn to violated IL

hallengers of the enforcea%ilit+ of IL

uestion of SanctionsLac) of olice force

2%sence of a legislature to develop new law as

international societ+ demands

Lac) of e-ecutive power to enforce the lawI6 statute proves for mechanisms for eaceful

settlement of disputes ( ar%itration, medication,negotiation. Etc %ut pro%lem resort to them is notcompulsor+ 7 states need to consent ineGective


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Is International law, law?

"rguments against creation# enforcement#effectiveness

"rguments for high degree of o!edience#conciliatory# consensual character of rules a!etter way to secure compliance$


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EGectiveness of international law in

regulating international communit+.prevention of military conflicts and offensive warssecuring free trade and commercial activity

responding to glo!al and regional

environmental challengesdealing with humanitarian crises%ther$Purpose of international lawIs there such as thing as the &International

community' why and how should IL !e regulated$

Documents

Unit 1 Nature of International Law