Tutorial Session on

International Law
CHAPTER 1

Is International Law- law?

Yes,

International law is law because it is seen

as such by states and other subjects of
International law. Also because it is based on
customary practice. There is no all over
authority to force compliance.

The notion that Int. Law is not a law because it is

often disregarded is based on exaggerated notion

of sovereignty as embodying an individual regime
is NOT THE REALITY.
REALITY IS: Social interdependence and the
predominance of general interest outlives
egoistic ideologies and that States are bound
by many rules not promulgated by
themselves.

Bases of International Law

Command theory - in the view of John Austin, a

renowned legal philosopher, law consists of

commands originating from a sovereign and
backed up by threats of sanction if disobeyed.
Consensual theory - International law derives
its binding force from the consent of states.
(Positivists)
Natural law theory - Law is derived by reason
from the nature of man.
- International law is said to be an application of
natural reason to the nature of the state-person.
(Naturalists)

What is meant by Jus Cogens?

COMPELLING LAW

Body of preemptory principles on norms from

which no derogation is permitted.

Those norms recognized by the International
community as a whole as being fundamental to
the maintenance of an International Legal Order
Examples: Prohibition on the use of force, the law

of genocide, crimes against humanity

What is meant by Erga Omnes?

Literally means towards all or towards

everyone.
In International Law it has been used as a legal
term describing obligations owed by states
towards the community of the states as a whole.
In International Law some basic legal precepts
are stated to be erga omnes, such as a
prohibition against torture, child labor, and in
support of state immunity.

What is meant by Opinio Juris?

In International Law, opinio juris is the subjective

element which is used to judge whether the

practice of a state is due to a belief that it is
legally obliged to do a particular act.
necessary to establish a legally binding custom
Subjective Factor of customs
Opinio juris essentially means that states must
act in compliance with the norm not merely out of
convenience, habit, coincidence, or political
expediency, but rather out of a sense of legal
obligation.

Sources of International Law

Custom or Customary Laws- A general and

consistent practice of states (material factor)

followed by them from a sense of legal obligation
(subjective factor)
Consistency over duration
Treaties- determine the rights and duties of

states just as individual rights are determined by

contracts.
Binding Force: comes from the voluntary decision
of the sovereign states to oblige themselves to a
mode of behavior.

Sources of International Law

General principles of law recognized by

civilized nations
This is also referred as "General principles of law
recognized by or common to the world's major
legal systems"
This has reference not to principles of
international law but to principles of municipal law
common to the legal systems of the world.

Sources of International Law

Judicial Decisions
Article 38 of the Statute directs the court to apply

judicial decisions as subsidiary means for the

determination of the rules of law.
But this is made subject to Article 59 which says
that "the decisions of the court have no binding
force except between the parties and in respect
of that particular case"
The decisions of the ICJ are not only regarded
as highly persuasive in international law circles;
they also have contributed to the formulation of
principles that have become international law.

Sources of International Law

The teachings of highly qualified writers and

"Publicists"
The extent to which they are referred to depends
on the tradition of the court or of individual
judges.
In common law jurisdictions, there is reluctance to
use them more so in the US than in Britain. In
civil law jurisdictions, there is more ready
reference to writers. The ICJ is generally reluctant
to refer to writers but they are often taken into
consideration.

Distinguish soft Law from hard

Law
Soft law means commitments made by

negotiating parties that are not legally binding.

Also called as non-treaty agreements. It is
simpler and more flexible foundation for future
relations. (Ex. Administrative rule, administrative
procedure)
Hard law means binding laws. To constitute law,
a rule, instrument or decision must be
authoritative and prescriptive. In international
law, hard law includes self-executing treaties or
international agreements, as well as customary
laws. These instruments result in legally
enforceable commitments for countries (states)
and other international subjects. (Ex. Treaties

Private international law vs. Public

International Law
Public international law- referred as

international law. It governs the relationship

between and among states and also their
relations with international organizations and
individual persons.
Private international law- called conflict of
laws. It is a domestic law which deals with cases
where foreign law intrudes in a domestic sphere
where there are questions of applicability of
foreign law or the role of foreign courts.

Is there collective responsibility

for a breach of International Law?
When a state breaches an international

obligation, it has a duty to make reparation for

any injury it causes, either by making restitution,
paying compensation, or providing some
alternative form of satisfaction, such as an official
apology. Moreover, the International Court of
Justice has consistently asserted that it may
order state payment of reparations when a
breach of international law has occurred.
Reparations have often been levied in the
aftermath of aggressive war:

Distinguish between monist and

dualist theories of International
Law.
Monist Theory - under this theory International

Law and Domestic Law belong to only one

system. However, there are two monist theories:
a. holds that municipal law subsumes and is
superior to international law
b. international law is superior to domestic law.
Dualist Theory - international law and municipal

law are essentially different from each other. They

differ as to source. If the two has conflict,
municipal law must prevail. These are positivist
with a strong emphasis on state sovereignty.

 Doctrine of Incorporation- The law of nations,

whatever any question arises which is properly

the object of its jurisdiction, is here adopted in its
full extent by the common law and it is held to be
part of the law of the land.
Doctrine of Transformation For the Int. Law to
be part of domestic law it must be expressly and
specifically transformed into domestic law through
the appropriate constitutional machinery such as
an Act of Congress or Parliament

In case of conflict between conflict municipal law

and international law, which should prevail?
Prevailing law will depend upon the tribunal to which

the question is raised.

Article 13 of the declaration of rights and duties of
states: "Every state has the duty to carry out in good
faith its obligations arising from treaties and other
sources of international law, and it may not invoke
provisions in its constitution or its laws as an excuse
for failure to perform its duties."
Article 27 of Vienna Convention: "A party may not

invoke provisions of its internal law as justification for

its failure to perform a treaty."

What are Calvo and Drago

doctrines?
Calvo Doctrine - a body of international rules

regulating the jurisdiction of governments over aliens

and the scope of their protection by their home states,
as well as the use of force in collecting indemnities.
This doctrine proposed to prohibit diplomatic
intervention before local resources were
exhausted.The Calvo Doctrine was essentially
restated by the Drago Doctrine.
Drago doctrine- The doctrine that states cannot

employ force in order to recover debts incurred by

other states. Thus the fact that a state has defaulted
on its debt to aliens or to another state does not
legalize the use of military intervention by these
creditors in order to reclaim monies they are owed.

Doctrine of non-intervention
Stipulates that no country shall intervene in

matters of another country that falls under its

jurisdiction.

Doctrine of Sovereign equality of

States

It means that each state as sovereign shall be

treated equally with regard to all the affairs in the

international community.

Principle of Self-determination of
People

All peoples have the right of self-determination.

By virtue of that right they freely determine their

political status and freely pursue their economic,
social and cultural development.