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HENDRIKSEN ILSummary
CHAPTER 1.
PIL is traditionally defined as the system of law that regulates the interrelationship of
sovereign states and their rights and duties to one another. PIL is not the same as ‘private
international law’, which consists of national laws dealing with conflicts of law and
establishes rules for the treatment of cases that involve a foreign element.
IL was invented in Europe. Europe in the late middle ages (15th and 16th centuries) was
characterized by both multiple levels of different allegiances and rights and obligations as
well as the universal political and religious forces of the Holy Roman Empire and the Catholic
Church. While an elaborate international legal structure did not yet exist, legal obligations
and contracts were nevertheless created in day-to-day relations of the communities at the
time, leading to numerous agreements on issues such as the conduct of war and the
exchange of prisoners of war. The period was also the dawn of colonialism, and the early
confrontations between Spanish explorers and native Indian populations and kingdoms in
the New World posed a particular challenge.
It is however not until the 17th and 18th centuries that we begin to see the contours of a
modern international legal system. The ‘birth’ of the international state system is usually
traced back to the 1648 Peace of Westphalia that brought an end to the Thirty Years Wars
that had ravaged continental Europe. The idea was to reduce the powers of transnational
forces, like empire and religion, and instead compartmentalize territory and individuals into
sovereign states. In turn, over time, this established the state as primary source of authority,
paving the way for an increasing sense of allegiance among citizens to their respective states
of nationality. By seeking to create an international order derived form agreed rules and
limits and basing it on a multiplicity of states of equal legal importance, Westphalia was a
decisive turning point, and what had initially merely been conceived of as a concept of order
for war-torn continental Europa spread to the rest of the world and to this day remains a key
building block of IL.
Unlike natural law, then, positive law does not envisage a universal legal system, but rather
one that is fragmented and in which states are bound by different legal obligations. Natural
law contained an all-embracing set of ideas about natural and social life in the universe and,
though primarily focused on the individual and his/her relations to the world. Positivism is a
law that is made by human beings. The note that the term positive does not mean “good” in
this context, but “man-made”. Definition of natural law, a law whose content is set by nature
and that therefore has validity everywhere. Natural law refers to the use of reason to
analyze human nature and deduce binding rules of moral behavior. Idea of perfect law based
on equity, fairness, and reason, by which all man-made laws (see positive law) are to be
measured and to which they must (as closely as possible) conform.
In the interwar period the primary development was the creation in 1919 of the League of
Nations, an organization tasked with maintaining world peace.
,The period immediately after the Second World War was a time of major achievements in IL.
The League of Nations was replaced by the United Nations (UN), which was entrusted with
the maintenance if international peace and security. The UN is built on solid ‘Westphalian’
principles and based on respect for the principle of equal rights.
Institutional cooperation has been particularly strong in Europe, where the EU stands out as
an impressive example of what ambitious states can accomplish.
For the most part, the post-Second World War events described in the previous section were
driven by the West, which used its dominance in world affairs to create a rules-based
international order that would be less prone to the sort of economic protectionism and
authoritarianism that led the world into chaos and mass slaughter.
The increasing international competition (non-western, China and Russia) means that major
states seem increasingly unable to reach agreement on ambitious collaborative efforts to
create new legally binding global agreement on important contemporary issues and instead
opt for less ambitious non-binding global political agreements or legally binding regional
agreements with like-minded states (ex. BRICS).
The centre of the international system has been the sovereign state, and international
society is first and foremost a society of individual national states. The conception of the
state as a national sovereign helps explain the primary purpose of IL. The existence of a
plurality of sovereign states provides the theoretical justifications for the binding character
of IL. The scope of IL is determined by the inadequacy of national law. The content of IL, and
thus the concrete answers to the questions that cannot be answered in national law, on the
other hand, must be found in IL.
In practice, therefore, a matter may become an issue for IL either due to its content or due
its form (ex. because of a treaty).
The IL of coexistence (general IL) contains the legal answers to questions that are inherently
of interest to more than one state and required to separate the powers of the sovereign
states and thereby uphold peaceful coexistence. It merely seeks to ensure that states can
pursue their different and separate interests in a way that respects the sovereignty and
rights of other states.
The second substantive structure of IL is the IL of cooperation and it is here one finds the
legal answers to issues that are not inherently of interest to two or more states but which
have nevertheless been turned into matters of international concern through the adoption
of treaty.
In practice, all states accept that they are members of a society of states and that they
benefit from the rules required for maintaining peaceful coexistence within the society they
form.
IL is in its lack of an international police force and a mandatory judicial system that can
enforce the law. An aggrieved state is left with no choice but to adopt its own measures in
response to another state’s violation of IL.
, CHAPTER 2.
In practice sources of IL are the argumentative tools available to the international lawyer. It
is in the sources of IL that one finds the legal answers to the questions that cannot be found
in NL. IL lacks a universal legislature and a system of courts with compulsory jurisdiction.
Thus, whether expressed explicitly in a treaty or more tacitly in an international custom
accepted as law or in a general principle already recognized by states, all international legal
obligations are considered to be derived from the consent of the state. States are however
always bound by those behavioral rules that are required for the maintenance of peaceful
coexistence.
The classical attempt at listing the sources of IL is found in article 38 of the International
Court of Justice (ICJ) Statue:
1. The Court, whose function is to decide in accordance with international law such disputes
as are submitted to it, shall apply:
- International conventions, whether general or particular, establishing rules expressly
recognized by the contesting states;
- International custom, as evidence of a general practice accepted as law;
- The general principles of law recognized by civilized nations;
- Subject to the provisions of Article 59, judicial decisions and the teachings of the
most highly qualified publicists of the various nations, as subsidiary means for the
determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et
bono, if the parties agree thereto.
- International conventions as a legal source.
The adoption of convention, or a treaty, is the most direct way for states to create rights and
obligations under IL. The legal basis of treaty-based obligations is state consent and a treaty
only creates legal obligations for the consenting states. The effect of a treaty is expressed in
the principle pacta sunt servanda according to which states are bound to honour their
treaty-bases obligations. A treaty concluded by two states is called a bilateral treaty. Treaties
between larger groups of states are called multilateral treaties. When a treaty establishes an
international organization, it is referred to as a constituent treaty. These treaties create
international organizations with the competence to adopt legally binding instruments.
- International custom as a source of IL.
Often in societies, the way things have always been done becomes the way that things must
be done. The absence of an international law-maker has made custom a particularly
important source of IL and many well-known legal principles and rules are derived from
common usage and interstate practice. A customary rule is binding on all states.
International customary law arises when a particular way of behaving is:
1. followed as a general practice among states; and the objective element, state practice.
(remember inconsistent practice) We know, physical practice (deeds) and verbal practice
(statements)
2. accepted by those states as legally binding. the subjective element, opinion juris. This is
important when a state acts contrary to an existing customary rule.
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