An Overview of International Law
Introduction
Our module focuses on ‘European’ law. We have looked at types of European national
legal systems.
In this topic we consider law beyond the nation. As it is classically stated, we are
looking at ‘the law between nations’. Or to use a more technical term, the law between
‘states’. This is international law. This topic is an overview of key legal principles
relating to international law. It is largely based upon G. Hernández’s book,
International Law which is on OUP Trove in the Public International law section.1
A thorough study of international law (or Public International Law as it is often
classified) is a whole module in itself. We are limiting our focus to:
• its European origins and some comments on that
• its key characteristics (notably its sources and the parties of international law)
• how it relates to national legal systems
• how it relates to international organisations.
The study of this topic will give us a framework to consider the European Union (EU)
and EU law which will take up most of the remaining topics.
European origins
It is worth mentioning from the outset, as Hernández does, that the origin of
international law has been ‘decidedly Eurocentric’. This reflects both the emergence of
the state based order in Europe (17th century) and the emergence and spread of
international law in Europe’s imperial and colonial histories.2 These are processes of
1 G. Hernández, International Law 1 (2019 OUP, 1st edn); accessible from Trove
<www.oxfordlawtrove.com/view/10.1093/he/9780198748830.001.0001/he-9780198748830> .
2 G. Hernández (n 1) 26; though to be clear not all European states were imperial and colonial.
1
,Europeanisation described by the historian, J M Roberts, which we considered in the
first topic.3
We are to understand that international law was constructed originally as an extension
of the European state-system. The emergence of the idea of the state and
sovereignty, (first monarchical, then legislative supremacy), led to the emergence in
the 17th century of another corresponding idea, that of inter-state relationship -
international relations and law.4 The international law which emerged was positivist
and based upon the central concept of the state and its sovereignty. We can think
then of an external dimension to sovereignty: the state is only bound to interstate rules
to which it, exercising its sovereignty, has consented.
This confirmed the emergence of state power over the (previous) claims of higher and
universal authority particularly such as that which had been claimed through papal
authority (the Roman Catholic church) and by adherents of the claims of natural law
(such as a system of universal principles or moral norms relating to human conduct).5
Two fundamental and dominant tenets of international law, the sovereign equality of
states – all states are sovereign and equal in international law, and, that obligations on
states must be on the basis of consent can be traced back to this period.
This is confirmed by the UN Charter (1945): Article 2(1) recognises ‘sovereign
equality’ among states
‘The UN ‘is based on the principle of the sovereign equality of all its Members’.
In essence this means that States, no matter their size are equal in international law
and each one is sovereign. Sovereign covers two senses, externally that no other
state should undermine its sovereignty, eg to overthrow the government or
3 See also G. Hernández (n 1) 5.
4 The Peace of Westphalia 1648, the name for several treaties signed in 1648, is usually marked as the beginnings of
international law that can be traced to today’s state based system.
5
G. Hernández (n 1) 9-10.
2
, compromise its territorial integrity or political independence, and internally in that, its
governance is the exclusive authority of that state.
International law has evolved and today, as Hernandez suggests, its aims are more
coherent, global (less Euro-centric), and, post-World War Two, have been directed to
safeguarding the stability and coherence of the international State-system. 6 This is
particularly evident with the pre-eminence of the United Nations organisation. One of
its key roles is to maintain international order and peace within a state based system.
Article 2(4) of the United Nations Charter states,
[a]ll Members shall refrain in their international relations from the threat or use
of force against the territorial integrity or political independence of any State, or
in any other manner inconsistent with the Purposes of the United Nations.
Perhaps then, we can identify the contemporary central tenets of international law as:
• still state centric: states are the principal subjects of international law;
individuals (human beings) are not;
• states are sovereign: free from interference by another state in their internal
affairs;
• equality of states: all states are legally equal among themselves, (might is not
right)
• a principle of consent/acceptance: consent or acceptance by a state is a
requirement to be bound by an obligation in the international plane;
• central role of the UN: requiring the peaceful co-existence of states and
protection of peoples (nb: nearly all states are members).
6
G. Hernández (n 1) 29.
3
Introduction
Our module focuses on ‘European’ law. We have looked at types of European national
legal systems.
In this topic we consider law beyond the nation. As it is classically stated, we are
looking at ‘the law between nations’. Or to use a more technical term, the law between
‘states’. This is international law. This topic is an overview of key legal principles
relating to international law. It is largely based upon G. Hernández’s book,
International Law which is on OUP Trove in the Public International law section.1
A thorough study of international law (or Public International Law as it is often
classified) is a whole module in itself. We are limiting our focus to:
• its European origins and some comments on that
• its key characteristics (notably its sources and the parties of international law)
• how it relates to national legal systems
• how it relates to international organisations.
The study of this topic will give us a framework to consider the European Union (EU)
and EU law which will take up most of the remaining topics.
European origins
It is worth mentioning from the outset, as Hernández does, that the origin of
international law has been ‘decidedly Eurocentric’. This reflects both the emergence of
the state based order in Europe (17th century) and the emergence and spread of
international law in Europe’s imperial and colonial histories.2 These are processes of
1 G. Hernández, International Law 1 (2019 OUP, 1st edn); accessible from Trove
<www.oxfordlawtrove.com/view/10.1093/he/9780198748830.001.0001/he-9780198748830> .
2 G. Hernández (n 1) 26; though to be clear not all European states were imperial and colonial.
1
,Europeanisation described by the historian, J M Roberts, which we considered in the
first topic.3
We are to understand that international law was constructed originally as an extension
of the European state-system. The emergence of the idea of the state and
sovereignty, (first monarchical, then legislative supremacy), led to the emergence in
the 17th century of another corresponding idea, that of inter-state relationship -
international relations and law.4 The international law which emerged was positivist
and based upon the central concept of the state and its sovereignty. We can think
then of an external dimension to sovereignty: the state is only bound to interstate rules
to which it, exercising its sovereignty, has consented.
This confirmed the emergence of state power over the (previous) claims of higher and
universal authority particularly such as that which had been claimed through papal
authority (the Roman Catholic church) and by adherents of the claims of natural law
(such as a system of universal principles or moral norms relating to human conduct).5
Two fundamental and dominant tenets of international law, the sovereign equality of
states – all states are sovereign and equal in international law, and, that obligations on
states must be on the basis of consent can be traced back to this period.
This is confirmed by the UN Charter (1945): Article 2(1) recognises ‘sovereign
equality’ among states
‘The UN ‘is based on the principle of the sovereign equality of all its Members’.
In essence this means that States, no matter their size are equal in international law
and each one is sovereign. Sovereign covers two senses, externally that no other
state should undermine its sovereignty, eg to overthrow the government or
3 See also G. Hernández (n 1) 5.
4 The Peace of Westphalia 1648, the name for several treaties signed in 1648, is usually marked as the beginnings of
international law that can be traced to today’s state based system.
5
G. Hernández (n 1) 9-10.
2
, compromise its territorial integrity or political independence, and internally in that, its
governance is the exclusive authority of that state.
International law has evolved and today, as Hernandez suggests, its aims are more
coherent, global (less Euro-centric), and, post-World War Two, have been directed to
safeguarding the stability and coherence of the international State-system. 6 This is
particularly evident with the pre-eminence of the United Nations organisation. One of
its key roles is to maintain international order and peace within a state based system.
Article 2(4) of the United Nations Charter states,
[a]ll Members shall refrain in their international relations from the threat or use
of force against the territorial integrity or political independence of any State, or
in any other manner inconsistent with the Purposes of the United Nations.
Perhaps then, we can identify the contemporary central tenets of international law as:
• still state centric: states are the principal subjects of international law;
individuals (human beings) are not;
• states are sovereign: free from interference by another state in their internal
affairs;
• equality of states: all states are legally equal among themselves, (might is not
right)
• a principle of consent/acceptance: consent or acceptance by a state is a
requirement to be bound by an obligation in the international plane;
• central role of the UN: requiring the peaceful co-existence of states and
protection of peoples (nb: nearly all states are members).
6
G. Hernández (n 1) 29.
3
