Nature Scope and History of PIL

International Law Law of Nations

Sovereignty right to make international relations, free to determine its own
domestic political structure and rules
Sovereignty Aisle Palamas case sovereignty indicates independence

1. Development, nature and scope of international law

What is international law?
International law is the law that governs relations between states
International Law is a binding regime of principles and rules that regulates the
relations among states, individuals and other non-state entities. International law is
composed of customary rather than formal rules adherence to them arises as a
matter of individual impetus and obligation, not by any formal external mechanism
of enforcement.
How, where and why international law developed
- 3000BC evidence of treaties between kings of city states in ancient
Mesopotamia
- Medieval Europe: Feudal kingdoms, principalities and duchies not
necessarily states but ecclesiastical law applied to all Europe
- 15th 16th centuries rise of the nation state: some powerful states emerged
in which internal authority became more centralized. The refusal of certain
nations to accept the political authority of others
- 16th 17th centuries Modern IL emerged from turmoil of Europes religious
wars of this period. Hugo Grotius, the father of international law, wrote a
book On the Law of War and Peace
- Peace of Westphalia 1648 (turning point of IL, rise of the nation state):
recognized a legal system of independent states not subject to a superior
authority, treaties established rights of numerous small states, confirmed
modern state system of independent, sovereign states
- 19th century European states consolidated after Napoleonic Wars and
Congress of Vienna 1815
o Unprecedented growth in negotiation of treaties, evolution of
customary law and publication of scholarly works
o Scope of IL broadened beyond war and peace to international
cooperation in a range of commercial and technical areas
(communications, IP, trademarks, customs)
- League of Nations was not successful (Ethiopia and Japan were uncontrolled,
USA did not join)
 - 1945 United Nations
An outline of the theories explaining international law (Make notes on, probably
what essay is on)
Is international law really law, as opposed to politics?
By defining international law as morality, Austin greatly increases the
Common class of morality does not have shared characteristics
cOnsent theory: international law is the law that emanates from states own free will
and have been consented to, very positivist view, obligation arises from consent.
Does not address foundations of IL, does not address disposable treaties (bilateral
treaty regarding boundaries), does not address why new states are bound by CIL
Code of international ethics?
Western liberal positivist method of teaching IL
Feminist critique of IL example being definition of torture, does not differentiate
between state/non-state version of torture
2. Sources of international law
Article 38(1) ICJ Statute (regarded as reflecting customary international law

The ICJ may draw upon these four sources in coming to decisions: treaties,
CIL, general principles, judicial decisions/teachings
No hierarchy no formal hierarchy of sources, except intertemporal
(latest/most relevant)
Court cannot ignore rules arising out of any part of 38(1) unless parties agree
otherwise
Formal v material: formal source is source from which law derives its validity
(treaty), material source is substance of a rule that gives its meaning (state
practice)
Special vs general laws special/specific laws take precedence over
conventions of international law (e.g. treaty before convention)
Principle of state consent consent by state is prerequisite for state being
bound

Treaties

Treaties are agreements concluded between states and international

organisations that give rise to obligations and rights between the parties.
They may codify or generate customary law
Can be construed as public international contracts
Treaties as a source of law strictly, treaties are only evidence of law, not
the source of law itself. Acceptance of a treatys terms does amount to
assent of its provisions
 One general rule of treaties is that the parties are under the obligation to
carry out the treaty in the manner specified by the treaty
Eventual source of customary law provisions of a treaty may come to be
so widely accepted that they achieve CIL status
Freedom of form no strict requirements for what constitutes treaty:
international organisations can enter, do not have to be written down/formal,
can be as little as a list of obligations between parties
Label of a treaty can be called anything e.g., charter, convention, etc
all treaties
Vienna Convention on the Law of Treaties 1969 (VCLT) Article 2:
applies to agreements between states in written form and governed by
international law, Article 5: does not affect the status of treaties not covered
by the 1969 Convention, Article 6: every state has capacity to enter into
treaties
Customary international law:
Constant and uniform usage, accepted as law, ie State practice plus opinion
juris, the conviction of States that the particular practice is required as a matter of
legal obligation, as distinct from comity or friendly relations

For a rule to become a CIL, it must be regarded as in constant and

uniform usage, accepted as law. Asylum Case (Colombia v Peru)
Relationship between Customary Law and Treaty
o Treaty is declaratory of the custom when treaty is adopted,
o Treaty crystallises an existing custom
o Treaty creates a provision that comes to be more widely accepted as
custom
For principle to become CIL, must satisfy two elements
o Constant and Uniform Usage (objective element)
North Sea Continent Shelf Cases
Norm-creating character principle should potentially
form basis of a generally applicable universal law
Widespread/representative participation principle
needs to be accepted by many states and be
representative within scope of the alleged extent of
principle (e.g. coast based states accepting water rules
Extensive and uniform state practice should indicate
that the rule has been thoroughly and reasonably
consistently adopted
States specifically affected rule must have been
generally adopted by those states who are particularly
affected
Time no requirement for time rule has existed. Scope of
adoption is critical
Nicaragua (Merits Case)
Imperfect still OK
 Treaty and Customary Law Co-Exist
o Accepted as Law (opinio juris)
States must hold subjective conviction/belief that observance of
rule is necessary or required as matter of legal obligation, not
just convenience
North Sea Continental Shelf Cases
Rule of law abeyance must be in a manner that
indicates a recognition of it as a rule of law or legal
obligation of which there is no choice but to obey
Respect for rule states must prioritise following the
rule over the material effects of not following
Legality of the threat or use of nuclear weapons
Impossibility if impossible to determine reasons for
state action in obeying a rule, then court should rule
against existence of customary law
What constitutes State practice

Evidence of State practice that can be used municipal

legislation/judicial decisions, statements of government policy, voting support
for resolutions in UN, diplomatic correspondence, military reports and
manuals
Evidence of constant and uniform usage
o North Sea Continental Shelf Cases
Diplomatic relations
Inaction
Deliberate inaction
No uniform rule
Preferring state practice
o Nicaragua (Merits) Case
Custom vs Treaty

- How is opinio juris determined

o Evidence of opinio juris
North Sea Continental Shelf Cases
Actual actions of government
Internal machinations
-
- Whether there can be instant custom
- Regional custom
o Regional customs can become binding rules of IL under certain
circumstances
- The persistent objector
General principles of municipal law common to most legal systems eg estoppel, res
judicata, prescription
 - Subsidiary means of determining international law: judicial decisions
(municipal and international) and academic writings
What is soft law
Jus cogens history, effect

3. Personality, statehood, self-determination, recognition

International legal personality
- What is international legal personality
o Various entities have legal personality under international law. Not all
entities have capacity under their personality in IL
- The international legal personality of States, international organisations,
corporations, individuals
Statehood
- What is a State?
- Criteria for statehood encapsulated in 1933 Montevideo Convention:
o Permanent population
o Defined territory
o Government
o Capacity to enter into relations with other States (usually interpreted
as independence)
- Self-determination what does it mean, who or what is entitled to self-
determination
o Secession is it lawful in international law (eg Kosovo seceding from
Serbia, Quebec from Canada, Western Australia)
Recognition
- Recognition of States (by other States)
o Constitutive v declaratory theories of recognition
- Recognition of governments

4. Title to territory
Methods of acquiring title to territory occupation, prescription, conquest, cession,
accretion and avulsion
Extent of a States land and maritime territory

5. The law of treaties

How treaties are made, interpreted, applied, terminated o
- Re treaty-making note distinction between signature and
ratification/accession
- Eg usual Australian practice re a multilateral treaty is to sign the treaty, then
pass any legislation (or implement administrative measures) necessary to
comply with the treaty, then to ratify the treaty
Reservations to treaties
- Are they permitted
- Effect of permissible reservations
- Effect of impermissible reservations