International Law
Exam Notes
2019-2020
,NotesNature + Development of IL
Historical developments of International law
1648: The Peace of Westphalia
-The birth of the modern state system
-States as political entities have sovereignty, they are not subject to any higher authority
Peace in Westphalia ended two wars:
(1) The 80-year war between Netherlands and Spain (1568-1648) (Treaty of Munster)
-Spain accepts independence of Netherlands
(2) The 30-year war of Protestants v Catholics ‘The religious wars’ (1618-1648) (Treaty of Munster and Osnabruck)
-Started out as a war between Catholics and Protestants but then turned into a European War
Brutality: In German land 30-40% of the population died in that war
Triumph of Secular Authority: Principle of ‘whose realm, his religion’. Whoever controlled the authority in a state
determined the religion.
17th/18th/19th century: Historical developments
Europe is the predominant world power at this time
(1) Break with Feudalism
-Ending of the system whereby the Emperor/King is at the top and all the nobles below swear allegiance in return for
protection
-Centralisation of power=increase in the authority of the state itself
-A move from feudal and city statesnation states
-One identity in a state rather than a feudal or religious identity only
(2) Imperialism and eventually colonialism
o Imperialism is the idea behind the practise of colonialism, imperialism is the desire for political or economic control
whereas colonialism refers to when one nation assumes control over another
I.) Imperialism: Strong countries in Europe tried to become the leaders of various territories
II.) Colonialism: After the rediscovery of the USA by Columbus imperialism increased, eventually they would be
colonised
…. Started with North/South America and then moved to Africa and Asia
(3) Move from natural law to positivist law
Natural law
-The law is universal
-Law comes from either divine law (god given) or ratio which comes from observation of nature
-Less consistent, people would come to different conclusions when using rational thinking
Positivist law
-Law comes from authority
-More consistent, codification movement: criminal/civil law is systematised
(4) The Congress of Vienna: 1815
-Emerged out of the French Revolution (1789) and Napoleons attempt to conquer all of Europe
-Diplomatic conference was held whereby there was a new attempt to put down the law in Europe
-Start of the congress system: the big powers would discuss the problems of the continent and reach solutions
without having to resort to war
-The Congress system as somewhat successful, conflicts in Europe were quite low
20th Century: World wars
(1) World War 1 (1914-1919)
o Positive result: The League of Nations
-1919: The League of Nations is included as part of the Peace Treaty of Versailles
-Politicians/diplomats decided to move away from the conference system and instead consummated an IO
-Not the first IO in existence, there was lots of practical ones, but it’s the first IO that was devoted to the
maintenance of international peace and security
…the world wasn’t ready for this level of international relations
(2) World War 2 (1939-1945)
o Positive result: The United Nations
-1945: Charter of the UN
-78 years later the UN is still here
, -No world wars have occurred even though there have been regional conflicts
20th Century post WW2: From peaceful co-existence to co-operation
-Co-existence=States trying to get along
-Co-operation=States actively cooperate in IOs
o The UN is just one of these organizations there is also;
The World Trade Organization
The Food and Agricultural Organization
o Often these organizations will not have the authority to make binding decisions, but undoubtably the world has
become more peaceful
20th Century: Decolonization
o Decolonization wasn’t new, we did have decolonization before this in the 19th century;
-Decolonization of the Ottoman Empire
-Decolonization of Austrian-Hungarian Empire
o However, in the latter half of the 20th century it grew in importance
-Africa and Asia are decolonized
-This has had a great impact: when the UN was created it had 55 signatory states, now we have 193
20th century: Geographical expansion leads to universality of IL
-Most land in the world is claimed by a sovereign state
-There are certain political communities left in the cold but mostly IL has become universal
-Even if we don’t accept Taiwan as a state, we probably still see it as a subject of IL and don’t accept it to commit an Act
of Aggression
The Nature of International Law
The concept of ‘law’
(1) Hugo Grotius
Material: Book-On the Law of War and Peace (1625)
-Suggested we do not merely need law within a state but also between states
(2) John Austin
IL as a moral order
Material: Book-Lectures on Jurisprudence (1869)
a.) Law is from the sovereign person or sovereign body of persons
b.) Law is a command:
c.) Every command has a sanction attached
Law is a command; the command comes from the sovereign; and if the command is disobeyed then there will
be a sanction
o This means we cannot explain international law in the same way as national law. In IL there is no
sovereign to give a command and therefore there is no sanction annexed to a command.
a.) IL is opinions and sentiments:
b.) No supreme government that is a political superior
International law is not law but is morality
(3) Hans Kelsen
IL as a legal order
Material: Book-The principles of international law (1952)
o Challenged Austin: International law has sanctions even through there is not one sovereign:
a.) Reprisalsacts which, although normally illegal, are exceptionally permitted as a reaction of one state
against a violation of its right by another state
b.) Warif other states violate international law you can go to war to sanction that violation
-Therefore, IL is law because it has sanctions, it is simply a law without one sovereign but multiple
sovereigns. Because it has sanctions it is more than a moral order and is a legal order.
The Foundation of Law
(1) Thomas Hobbes
Material: Book-Leviathan (1668)
The state of nature (hypothetical): In nature men are equal but you cannot be sure of your safety; this makes everyone
insecure; ‘the life of man, poor, solitary, nasty, brutish and short.’ There is no central authority which leads to the state of
‘war of all against all’.
, Overall: Where there is no common power, there is no law but complete chaos
Creation of a social contract: When you enter society, you do this for the preservation of your own life. You subject
yourself to authority but you must follow the sovereign and cannot rise up in rebellion against him.
(2) John Locke
Material: Book- Two Treatises of Government (1690)
The state of nature (hypothetical): In the state of nature there is law, but we don’t know what it is. We can’t find out
what the law is because there is no authority to tell us.
Overall: Although there is no common power, he believes that there is law in the state of nature and not complete chaos,
but its hard to determine what this law actually is.
Creation of a social contract: When you enter into a society you do this for the preservation of your property (your life,
liberty and estate.) You subject yourself to authority for your own gain but if the sovereign is abusive you can rise up in
rebellion.
The Foundation of international law
(1) One state: National legal system:
Vertical relationship, centralised authority which:
-legislates
-adjudicates
-enforces
Law is imposed upon individuals weather they like it or not: individuals as subjects of the law
(2) Multiple states: International Law
Horizontal relationship-multiple authorities because all of the different states therefore;
-States make the law,
-States enforce the law
-States agree to adjudication
Which leads to….
-Consensual law-making
-Adjudication by consent
-Unilateral enforcement (except when it comes to SC which can make a decision binding on all states of UN
when it comes to enforcement)
The Development of International Law
International peace and security
o 20th century: Two world wars
-Expansion geographically of peaceful nations
-Improvement of technology: destructive forces such as nuclear weapons stops states engaging in war
o The United Nations
-The restriction of armed force
Prohibition on the use of armed force: art 2(4) Charter
Exception of self-defence: art. 51 Charter
o SC has its own monopoly in this respect
Aggression, breaches, threats: art.39 Charter
Centralization of enforcement: art. 41-42 Charter
System not implemented as envisaged
International Organizations=subjects of IL
Self-determination of peoples
o The European era: 16th-20th century
-Characterised by imperialism and colonialism
o Globalisation (middle of the 19th century)
-Development in transport, trade and education across the world ended European dominance
o Decolonization (middle of the 20th century)
(1) Principle of self-determination
Preamble (we, the peoples) and Article 1 Charter
Article 73(b) and Article 76(b) Charter: The charter as a colonial document
(2) Right of self-determination
, Declaration on granting of independence to colonial countries and peoples: GA Resolutions 1514/1541
(1960)
Article 1 ICCPR & ICESCR (1966)
(3) Prohibition of colonial, alien, racist domination
Peoples= subject of IL
Human Rights
o Individuals have rights under IL
Article 1 (3), 55-56 Charter
UDHR (1948)
ECHR (1950)
ICCPR (1966)
International Criminal Law
o Individuals and have obligations under IL
o Especially related to war crimes, crimes against humanity and genocide
o International precedents
Nuremberg/Tokoyo Tribunals
Yugoslav/Rwanda Tribunals
(created by the SC)
o 1998: The Rome Statute of the International Criminal Court (entered into force in 2002)
Individual=subjects of IL
,NotesSources of International Law
International law: Horizontal situationindefinite method of discovering what the law isnot a clear hierarchy of
sources because there is lack of a legislature, executive and structure of courts within IL
National law: Vertical situationdefinite method of discovering what the law isclear hierarchy of sources
because there is a graduation of authority imparting to the law a large measure of stability and predictability
Voluntarism/consensualism
International legal positivism: States as authorities acting together
Consent can be implicit (CIL) (referred more commonly to as ‘consensus’) or explicit (treaties)
Case law: Lotus (1927) PCIJ
Facts: Crash on the high seas between Turkish and French boat
QOL: Does the Turkish authorities have jurisdiction, or is this a case of flag state jurisdiction as the French argued?
‘International law governs relations between independent states. The rules of law binding upon states therefore emanate
from their own freewill as expressed in conventions (treaties) or by usages generally accepted as expressing principles
of law’ (probably also a reference to CIL)
Article 38ICJ Statute:
Widely recognised as an authoritative and complete statement as to the sources of IL, since all 193 members of the UN
are by virtue of Article 93 of the Charter ipso facto parties to the statute
The court must decide cases in accordance with international law and will for dispute settlement will apply;
1. Primary means: Law creating processes
a.) International Conventions (treaties)
b.) International Custom (CIL)
c.) General Principles of law
2. Subsidiary means for the determination of rules of law above: Law determining agencies
d.) Judicial Decisions
e.) Teachings of the most highly qualified publicists
How does this work?
First, we look at the primary sources and then we use the subsidiary sources to find out what the law really is and
make sense of the law:
(a)Interpretations of treaties
(b)How we should assess state practise
Ex aequo et bono
This means that the court will decide a case not strictly in accordance with IL but by taking into account justice and
equity
This has never actually happened; parties really prefer that the court solve cases according to the law!
Non-exhaustive list of sources of IL given in 38 ICJ
-Court can use other sources
Unilateral declaration/statements
-ICJ, Nuclear Tests cases (1974) paras 42-46
Facts: The minister of foreign affairs gave a number of statements which said that after they had completed the
series of tests they would go underground with the testing which would lead to less radioactive fallout. These
statements made to the press expressed an acceptance of the legal obligation no linger to carry out atmospheric
tests.
-It is important to look at the intention of the state when assessing unilateral declarations to be bound as well as
the element of publicity
Binding decisions of International Organizations
-They create rules for states to follow
-The SC can make general rules (carried out by all states) or specific obligations (carried out by a particular
state) there is a distinction here.
Sources which may cause confusion but which are not sources of law!
Non-binding GA Resolution
-Interpretations of the treaty
-May contribute to CIL because states engage in practise based on the resolution or because they express opinio
juris.
-May form the basis of a new rule of custom.
Soft law
, -Not actually law (also encompasses GA Resolutions)
-Resolutions may evidence an existing custom or constitute usage which may lead to the creation of a custom
-They may along with recommendations, guidelines and codes of practise or standards be formalised into a
binding treaty or acceptance as CIL or not!
Jus Cogens norms (‘compelling law’)
-Not actually a source by itself but more based on existing sources
International Law Commission
-Exercises Article 13 Charter competence of GA
-34 members appointed from lists submitted by national governments
(1) Making treaties
(2) CIL
-Its work such as reports, studies and drafts are part of a whole range of state practise which can lead to new
rules of CIL
(3) Highly qualified publicist
-The ILC is a body composed of every qualified publicist whose reports and studies may be used as a method of
determining what the law actually is
Functions of sources overlapping
The different functions of sources overlap to a great extent
Treaties merely reiterate accepted rules of customary law: ‘codified customary law’
Treaties
Treaties unlike custom require explicit consent
For sources of IL we are interested in multilateral treaties, bilateral treaties serve more as evidence of CIL
The Vienna Convention on the Law of Treaties (conclusion=1969, entry into force=1980)
NB: There is a second VCLT which is between IOs or between IOs and states, it was concluded in 1986 but has
still not entered into force because it does not have enough ratifications.
The making of the VCLT
o The VCLT is actually a treaty itself and was created by the ILC, a subsidiary organ of the UN General
Assembly which deals with progressive development of IL and codification of IL under Article 13 UN Charter.
Is the VCLT customary law?
Non-retroactivity: Article 4 VCLT
-It will not apply to treaties before 1980, these treaties are governed by CIL
Codification v progressive development
Codification=already existing rules
Progressive development=didn’t exist as rules of international law yet and the ILC actually formed
new rules which could actually form the basis of new customary law
In 1969 allot of the rules in the VCLT were customary law that was simply codified, but since 1969 there may have been
allot of state practise which means they are now CIL
Interpretation in article 31/32 were not CIL at the time but since then these have been confirmed by
tribunals as CIL so we see practise and opinio juris based on the VCLT
Rules of jus cogen in article 53VCLT were not CIL
The VCLT is not codified CIL but VCLT but reflects CIL
Customary International Law
o Customary law means that the international community can change a particular law without having to convene at a
world conference (as with treaties)
o It reflects the consensus approach to decision-making, where the majority can create a new law binding on all.
Two elements:
(1) General practise: Objective: How are the states acting?
(2) Accepted as law (opinio juris): Subjective: why are the states acting?
General practise
-Uniform
-Consistent
-Duration usurped by widespread
-Representative
, (1) Uniform
Asylum case 1950: The basic rule: ‘In accordance with a constant and uniform usage practised by the states
in question’High standard
North Sea Continental Shelf Cases: Development of the rule: ‘both extensive and virtually uniform in the
sense of the provision invoked’Lower standard whereby they need to be very close but not exactly the same
Nicaragua case: Revision of the rules: ‘The conduct of states should in general be consistent with such rules’
Only a general practise is required, there does not necessarily have to be a fully consistent practise and there
may be examples of state practise that aren’t in line with itModern CIL
Over time we have come to understand that you cannot expect all the practise to say the same thing as such but
nevertheless CIL may still be formed
(2) Duration usurped by widespread
The exception: repetition is not always required and in some cases as long as opinio juris is established then
instant custom is possible
-There is no rigid time element
-What is known as ‘instant custom’ is possible especially in some areas of IL where rules emerge quite
quickly such as airspace and outer space
-Need to be widespread and representative of state practisemany states need to do it
(3) Widespread usurped by representativeness
Some states activities are regarded with greater significance than others.
Custom may be created by just a few states provided that those states are intimately connected with the issue at
hand; weather because of their wealth and power or because of their special relationship with the subject
matter, this forms the basis of representativeness…
a.) Maritime nations in sea law
b.) Soviet Union and Russia in space law
For a custom to be accepted and recognised it must have the concurrence of the major powers in that particular
field, universality is not required
(4) Consistency
Case law: Nicaragua
‘The conduct of states should in general be consistent with such rules’
Case law: North Sea Continental Shelf case paras 73-75
QOL: Is equidistance a rule of international law applicable to Germany since they have not a party to the
treaty, is it also CIL?
Problem: 1958-1969 is not a very long time and usually for a custom to emerge surely there needs to be
repetition/time element
Court insights into CIL
(1) Usually a custom develops over a long period of time, but it is possible for a rule of CIL to develop quickly
know as instant custom if (Para 74)
(2) The practise is ‘virtually uniform and constant’ (Para 74)
(4) Widespread and representative participation in a convention may prove it (treaty: 1958 Geneva Conventions
on the law of the sea) (Para 73)
(3) You also need to have the specially affected states involved (Para 74)
Omissions/ Inaction forming CIL
Failures to act are in themselves just as much evidence of a states attitudes as are actions
A failure to act can arise from a legal obligation not to act or an incapacity (resources) or unwillingness to act
and obviously only the former would form opinion juris
The continued habit of not taking actions in certain situations may lead to the formation of legal rules: known as
a negative custom or a rule not to do it
Caw law: Lotus (para 78 of North Sea)
Judgement: The PCIJ refused to regard the abstention of states (other than the flag state) from prosecuting for
collisions on the high seas as establishing the existence of a rule of CIL requiring them to refrain. This is
because the abstention in those circumstances was ambiguous (there could have been other reasons why a state
might have abstained)
PCIJ high standard: An abstention could only give rise to the recognition of a custom if it was based on a
conscious duty to abstain (this is the opinion juris). In other words, states had to actually be aware that they were
not acting a particular way because they are under a specific legal obligation not to act that way.
, Case law: Nuclear Weapons (para 64/65/66)
-States omitting to use nuclear weapons is not a sufficient condition to establish the necessary opinion juris
(since some states may still reserve the right to do so). The circumstances for their use had not arisen.
Acceptance as law (opinio juris sive necessitatis)
Either the states taking such action or other states in a position to react to it, must have behaved so that their
conduct is evidence of a belief.
The state believes that certain conduct is as a matter of law:
Prohibited=obligation not to do something (prohibitive rule)
Prescribed= obligation to do something (prescriptive rule)
Permitted= right (permissive rule)
Eg Freedom of the High Seas
Persistent Objection
Exception to the non-requirement for ‘explicity’ regarding state consensus in CIL, you need actual protest since
silence of states is seen as consensus in CIL
Case law: Norwegian Fisheries Case (1951)
-Norway was drawing straight lines and discounting its irregularities
-UK objected
-Norway has always objected to the rules on baselines and therefore it doesn’t apply to Norway
-The UK lost the case + started drawing straight baselines along with other states
-Norway’s persistent objection actually formed the basis for new CIL to develop, straight lines baselines are
now part of the Law of the Seas
The rules of persistent objection
1. Persistent objection is an expression of sovereignty and a refusal to give consent to CIL
2. When a rule is in the process of development, so there is some state practise and some opinio juris, the state can object,
but not after the rule has come into existence
-Must consistently violate it
3. The legal consequence of such objection makes the rule inapplicable this state
4. The objection must be clearly expressed, made known to other states and maintained persistently
5. Cannot persistently object to jus cogens
6. It is only states that have persistently objected that will be exempt
7. The moment you stop objecting and you accept it then you are in and it is binding forever
-If you act in a way that is in compliance with the rule
Persistent objection can also lead to three other results:
-Needs lots of states to happen
(1) Modification
Case law: Nigaragua (para 207)
‘Reliance by a state on a novel right or an unprecedented exception to the principle might, if shared in principle by other
states tend towards a modification of CIL’
-You can modify if you have lost status of persistent objector, whilst you are modifying it you are technically
breaking it but you are allowed to modify
(2) Exception
-Can also create a new exception
(3) Annulling
-Getting rid of it in theory
Law-breaking or law-making?
Law breaking is a violation, not the beginning of a new custom if states agree to keep old rule
(1) Practise in relation to an existing rule
Practise may conform to the rule
Practise may break the rule and therefore be a violation because states agree the rule is kept
Practise may form the basis for a change of the rule if states agree that old rule should not be kept
[..] How do we decide if it’s the beginning of a new rule or just a violation?
(2) Opinio juris in relation to existing rule is what we look at…
Two important elements
1. Legal claim of the state engaging in the practise
2. How other states legally respond to this state practise and the legal claim, you need to look at all states responses
-Rejection, acceptance, silence
, When do we perceive that a rule has come into existence?
ICJ has a very tricky exercise in determining when a rule of CIL came into existence
-Relevant to the acceptance of a persistent objector in the original CIL
-Relevant when you have a modification existing alongside the original rule.
Original CIL:
- Absence of protest implies acceptance, and therefore silence by a state, provided that there is a general
consensus will result in it becoming legally bound
Modification/exception:
-More difficult to address the legal result of silence
-If most states want the new rue then silence will be acceptance, if most states want the old rule then silence will
be consensus for old rule
The Result of Modification
Customary rules can exist at the same time and move forward which are on the same thing but with a modification
Rule 1: The initial rule
Rule 2: The modification of rule 1
They can exist for a while but eventually a state will probably complain and there will be a decision
Evidence of state practise/opinio juris
State practise: What states do (action or inaction)
State level:
-Legislative acts, decisions of domestic courts, treaty making in IL
Supplemented by looking at broader state organs actions:
-State legal officers (police), Diplomatic agents, Political leaders
Sources:
-National newspapers, Consultation of historical records, Diplomatic exchanges
Additionally
-Resolutions in the GA , Comments made by governments on drafts by the ILC, Practise of international
organizations
Not all practise is of equal value
Practise doesn’t always have to be physical acts can also be statements
Opinio juris: What states say (legal statements)
State level
-Statements of government, Statements of ministers, Statements at international organization, Press statements
Attitude taken by states concerned in:
Major codification conventions,work of the ILC, GA Resolutions
Case law: Nicaragua (para 188-189, 190)
The effect of consent to resolutions such as this one ‘may be understood as acceptance of the validity of the rule or set of
rules declared by the resolution by themselves’
Case law: Legality of nuclear weapons (68-71)
How it works overall
We need to see these elements separately: The law of a state can be an indication of what the state thinks is
permitted but weather it feels bound on an international level by these rules will probably require a statement
(opinio juris)
Regional and local custom
It is possible for rules to develop which will bind only a set group of states or just two states!
The standard of proof is higher than for general custom;
Local custom Explicit consent by both or all parties to the rule
General customProcess of consensus means that a majority of interested states can be sufficient to create a new custom
Link between customary law and treaty law
Codification: There are many agreements which codify existing CIL such as the VCLD
Progressive development: Sometimes non-parties to an original treaty come to accept that provisions in that
treaty can generate CIL when coupled with opinio juris
Case law: North-sea continental shelf (para 72)
-The court declared that a particular provision can be ‘of a fundamentally norm creating character.’ That is capable of
forming the basis of a general rule of law.
When a treaty rule comes into being covering the same ground as CIL, the latter will not simply be absorbed
Case law: Nicaragua (para 77)
