You are on page 1of 16

*International law - law that governs the

relations among states/nations.


*Oppenheim:
IL is the body of rules which are legally
binding on states in their intercourse with
each other. These rules are primarily those
which govern the relations of states, but
states are not the only subjects of IL.
International Organisations and to some
extent also individuals may be subjects of
rights conferred and duties imposed by IL.
*THE ORIGIN OF IL:

*Emerged in Europe in the period after the


Peace of Westphalia 1648 treaty based on
recognition of community of independent and
equal sovereign states.
*DISTINCTION BETWEEN IL AND NATIONAL LAW:
International Law National Law

Legal regulation of the international Law within a state, concerned with


intercourse of states which consider the rights and duties of legal persons
themselves as sovereign and within the state.
equal.
The horizontal legal system lacking a There is government that exercise
supreme authority. supreme authority.
No supreme law-making body in IL. There is supreme law-making body
Treaties are negotiated between -government.
states on an ad hoc basis and only
bind states which are parties to a
treaty.
No international police to oversee The government as a supreme
obedience to the international legal authority can determine and enforce
standards to which state agree or the law. e.g. through administration,
that develop as international police, army, courts and tribunal.
standards of behaviour.
No compulsory enforcement
mechanism for the settlement of
disputes.
*INTERNATIONAL LAW AS LAW

The consensual or positivist theory regards


actual practice of states as the foundation of IL.

The basic idea of this theory is that the binding


character of IL flows from the consent of
states.

The leading positivist was Dutch juris


Bynkershoek.
Natural law theory stipulates that rules of law
are derived from the application of the law of
nature as a matter of human reasoning
objectively correct moral principles. (in
contrast with positivist view)

Ubi societas ibi jus: law can only exist in


society, and there can be no society without a
system of law to regulate the relations of its
members.
*WHY DO WE NEED A SYSTEM OF IL?

Regulate conduct

Acceptance by states

Encourage cooperation among states

Facilitates joint responses to illegal actions


*THE WEAKNESS OF IL?

Lack of effective institutions


There is no law making authority.
General Assembly of the UN is not equivalent
to World Legislature
Arbitral and judicial bodies can only exercise
jurisdiction with the consent of the parties.
The veto of 5 Permanent Members of UN
Security Council frustrated its functions, even
in many cases its decisions is politically
motivated.
Lack of effective enforcement machinery

Lack of political will on the part of states


states are reluctant to comply with IL
when their vital interests are at stake.
Veto power given to 5 permanent
members no enforcement action
against them and their close ally.
*WHY DO STATES OBSERVE IL?

Sense of obligation states feel obliged to


honour rule of IL because these rules have
come into existence on the basis of their
consent.
Common self-interest interdependent
between states.
Political and economic costs a state can lose
much through a violation of IL; loss of trust,
credibility, reduction in foreign trade.
*ENFORCEMENT OF IL

Diplomatic protest:
Traditional method.
Regarded as the first step of enforcement.
Can be followed by peaceful or coercive
means of enforcement.
Peaceful means of enforcement:

Article 2(3) of the UN Charter member


states to settle international disputes by
peaceful means.

The peaceful means of dispute resolution are


enumerated in Article 33 :..negotiation,
enquiry, mediation, conciliation, arbitration,
judicial settlement.
Coercive means of enforcement:

Non-military means

Self-help exists as a sanction in all legal


system.
Unilateral force can be used only in the exercise
of the right of self defence under Article 51 of
the UN Charter.
Countermeasure retorsion and reprisals. e.g
disruption of diplomatic ties, embargoes of
various kind, withdrawal of voluntary aid
programmes.
Military means (use of force)

Prohibition of the use of force Article 2(4)


of the UN charter.
Exceptions:
right of self- defence under Article 51
enforcement action by the Security
Council if there is a threat to the peace,
a breach of the peace or an act of
aggression.