International law notes
Term 1
Week 1 – History of International Law
International law at least historically is the law that regulates dealings between states. Individuals
however have become increasingly important over recent years, however its usually only in
connection with what the state does.
Private international law: law that governs the relations between individuals across different states
Public international law: governs the relations between states as a whole
In public, state is the primary actor. This is one of the key features. Others include:
• Decentralised legal order - rules are enforced by individual states, or entities given the
authority to act on behalf of the state. There is no collective action force that
regulates the laws
• So there is a collective responsibility to uphold international law, to ensure we
maintain relations between states - an individual act by any organ of state will be
deemed the action of a state under international law
International law assumes states have freedom of action to do what they want
SS Lotus Case (France v Turkey) [1927] - research later and fill in:
In the case the court discussed the basis international law:
International law governs relations between independent States. The rules of law binding upon
States therefore emanate from their own free will as expressed in conventions or by usages
generally accepted as expressing principles of law and established in order to regulate the relations
between these co-existing independent communities or with a view to the achievement of common
aims. Restrictions upon the independence of States cannot therefore be presumed
Court found that turkey had not violated eek 2 eek 7 international law, as there was no rule started
proceedings against a French national for committing a crime in turkey.
Must assume in the absence of a domestic prohibition, states can do what they want as per
international law
SS Wimbledon [1923] - research later and fill in
The right of entering into international engagements, is in fact an attribute of state sovereignty. So
once recognized as a sovereign state, you are afforded certain rights
These two cases established a horizontal order of international sovereign states
International law stems from the acts of the systems subjects themselves, rather than from religion
or social accepted beliefs
,The History of International law:
• Ancient world
o Greek states entered into treaties
o Roman republic had system for dealing with foreign merchants
o International law in modern sense?
o Natural law: Jus naturale (idea of a natural law - developed by early
roman lawyers, as well as Christian teachers)
o and jus gentium (subset of the natural law, applying just to humans)
Late 1400s, European states bound together by complex religious ties. Law is closely tied to
religion
• Discovery of the new world changes things - how do you deal with non-
Christians?
• All of human society forms a single moral universal community under the
catholic and Anglican churches
• Jus gentium therefore applies to everyone (subset of law of nature - law of man)
• Vitoria -
o Because the Indians possess reason, they too must be protected
under the jus gentium
o A gap between the universal Indian and the historically, socially
particular Indian that can only be remedied, it transpires by the
intervention of the Spanish, who are characterised as the agents
of the natural law
o A natural law, which despite its claims to universality, appears
derived from an idealised European world, based on European
identity, thus it is almost inevitable that the Indians, by their very
existence and their own unique identity and cultural practices,
violate this law
o So in essence the Spanish invasion of the America's has been
perceived as self-defence under this discourse of universal law
• Increased rivalry between European powers
o Increased problems with the church and the feudal order as
individual states begin to develop further as distinct legal actors
and have their own identity aside from the church
o 1648 peace of Westphalia - series of peace treaties signed ending
the thirty years war. It is seen as the beginning of the modern
international system, based on the concept of Westphalian
sovereignty (principle in IL that each state has exclusive
sovereignty over its territory
• The peace undermines the churches control
• Gives exclusive territorial control to states
High colonialism
• 1800s onwards - international law only protects European states
o Concept of civilisation determines who is protected by
international
o Unequal treaties and capitulations with semi-civilised non-
European states
International law exists on this view between states, not above states. Naturalism argues that
all states are subject of this higher natural law. positivism states that states are the law
makers, and therefore cannot be bound by a law that it itself has not created.
,Inter-war period
• World War 1 (1914) and Russian Revolution (1917) reshape
European politics - could they stop another world war?
• 1919, League of Nations Covenant
• Permanent Court of International Justice
• International Labour Organisation
• Kellog Briand Pact
• League of Nations Mandate System
• All of this is totally useless and leads to WW2
WW2 and After
• Created UN
o Collective security regime begins. International institution aimed
at universal membership and massively reduce the use of war as a
vehicle for change
o Signed charter (50 states initially)
o Viewed as a very gradual process
o Creation of a number of international institutions such as the WTO
and IMF
o Self determination for non-European states
o Cold war tensions
• Overt politicisation of IL
• Paralysis of UN
International Law today
• US as world's sole super power
• Key features of IL
o The UN
o ICJ - principal judicial organ of the UN (Article 1, charter of the ICJ)
• Can only apply law to those party to the statute
(Article 35)
• Doesn’t have compulsory jurisdiction as of right
(Article 36)
, • Can issue advisory
o Greater importance of the individual
o Expansion in international arbitration
o Fragmentation
UN
• General Assembly
• All members
• Democratic vote
• Concerned with general matters
• Security Council
• 15 members
• Five ‘permanent members’
o Veto power
• Concerned with peace and security
• Very powerful
• In order to ensure prompt and effective action by the UN, its members confer on the
security council primary responsibility for the maintenance of international peace and
security, and agree that in carrying out its duties under this responsibility the security
council acts on their behalf (art. 24, UN charter)
Fragmentation
What once appeared to be governed by “general international law” has become the field of
operation for such specialist systems as “trade law”, “human rights law”, “environmental law”,
“law of the sea”, “European law” and even such exotic and highly specialized knowledges as
“investment law” or “international refugee law” etc. - each possessing their own principles
and institutions.
International Law Commission (ILC), ‘Fragmentation of International Law: Difficulties Arising
from the Diversification and Expansion of International Law’ (2006)
• The so called law of nations consists of opinions or sentiments current among nations
generally. It therefore is not law properly so called
Week 2 – Sources of International Law
• Treaties
• Custom
• State practice
• Opinio juris
• Other sources:
• Statutes
• Cases
PICJ was the first international court to govern over disputes between states.
Under article 38 of the statute of the ICJ, there are 4 sources of IL:
Term 1
Week 1 – History of International Law
International law at least historically is the law that regulates dealings between states. Individuals
however have become increasingly important over recent years, however its usually only in
connection with what the state does.
Private international law: law that governs the relations between individuals across different states
Public international law: governs the relations between states as a whole
In public, state is the primary actor. This is one of the key features. Others include:
• Decentralised legal order - rules are enforced by individual states, or entities given the
authority to act on behalf of the state. There is no collective action force that
regulates the laws
• So there is a collective responsibility to uphold international law, to ensure we
maintain relations between states - an individual act by any organ of state will be
deemed the action of a state under international law
International law assumes states have freedom of action to do what they want
SS Lotus Case (France v Turkey) [1927] - research later and fill in:
In the case the court discussed the basis international law:
International law governs relations between independent States. The rules of law binding upon
States therefore emanate from their own free will as expressed in conventions or by usages
generally accepted as expressing principles of law and established in order to regulate the relations
between these co-existing independent communities or with a view to the achievement of common
aims. Restrictions upon the independence of States cannot therefore be presumed
Court found that turkey had not violated eek 2 eek 7 international law, as there was no rule started
proceedings against a French national for committing a crime in turkey.
Must assume in the absence of a domestic prohibition, states can do what they want as per
international law
SS Wimbledon [1923] - research later and fill in
The right of entering into international engagements, is in fact an attribute of state sovereignty. So
once recognized as a sovereign state, you are afforded certain rights
These two cases established a horizontal order of international sovereign states
International law stems from the acts of the systems subjects themselves, rather than from religion
or social accepted beliefs
,The History of International law:
• Ancient world
o Greek states entered into treaties
o Roman republic had system for dealing with foreign merchants
o International law in modern sense?
o Natural law: Jus naturale (idea of a natural law - developed by early
roman lawyers, as well as Christian teachers)
o and jus gentium (subset of the natural law, applying just to humans)
Late 1400s, European states bound together by complex religious ties. Law is closely tied to
religion
• Discovery of the new world changes things - how do you deal with non-
Christians?
• All of human society forms a single moral universal community under the
catholic and Anglican churches
• Jus gentium therefore applies to everyone (subset of law of nature - law of man)
• Vitoria -
o Because the Indians possess reason, they too must be protected
under the jus gentium
o A gap between the universal Indian and the historically, socially
particular Indian that can only be remedied, it transpires by the
intervention of the Spanish, who are characterised as the agents
of the natural law
o A natural law, which despite its claims to universality, appears
derived from an idealised European world, based on European
identity, thus it is almost inevitable that the Indians, by their very
existence and their own unique identity and cultural practices,
violate this law
o So in essence the Spanish invasion of the America's has been
perceived as self-defence under this discourse of universal law
• Increased rivalry between European powers
o Increased problems with the church and the feudal order as
individual states begin to develop further as distinct legal actors
and have their own identity aside from the church
o 1648 peace of Westphalia - series of peace treaties signed ending
the thirty years war. It is seen as the beginning of the modern
international system, based on the concept of Westphalian
sovereignty (principle in IL that each state has exclusive
sovereignty over its territory
• The peace undermines the churches control
• Gives exclusive territorial control to states
High colonialism
• 1800s onwards - international law only protects European states
o Concept of civilisation determines who is protected by
international
o Unequal treaties and capitulations with semi-civilised non-
European states
International law exists on this view between states, not above states. Naturalism argues that
all states are subject of this higher natural law. positivism states that states are the law
makers, and therefore cannot be bound by a law that it itself has not created.
,Inter-war period
• World War 1 (1914) and Russian Revolution (1917) reshape
European politics - could they stop another world war?
• 1919, League of Nations Covenant
• Permanent Court of International Justice
• International Labour Organisation
• Kellog Briand Pact
• League of Nations Mandate System
• All of this is totally useless and leads to WW2
WW2 and After
• Created UN
o Collective security regime begins. International institution aimed
at universal membership and massively reduce the use of war as a
vehicle for change
o Signed charter (50 states initially)
o Viewed as a very gradual process
o Creation of a number of international institutions such as the WTO
and IMF
o Self determination for non-European states
o Cold war tensions
• Overt politicisation of IL
• Paralysis of UN
International Law today
• US as world's sole super power
• Key features of IL
o The UN
o ICJ - principal judicial organ of the UN (Article 1, charter of the ICJ)
• Can only apply law to those party to the statute
(Article 35)
• Doesn’t have compulsory jurisdiction as of right
(Article 36)
, • Can issue advisory
o Greater importance of the individual
o Expansion in international arbitration
o Fragmentation
UN
• General Assembly
• All members
• Democratic vote
• Concerned with general matters
• Security Council
• 15 members
• Five ‘permanent members’
o Veto power
• Concerned with peace and security
• Very powerful
• In order to ensure prompt and effective action by the UN, its members confer on the
security council primary responsibility for the maintenance of international peace and
security, and agree that in carrying out its duties under this responsibility the security
council acts on their behalf (art. 24, UN charter)
Fragmentation
What once appeared to be governed by “general international law” has become the field of
operation for such specialist systems as “trade law”, “human rights law”, “environmental law”,
“law of the sea”, “European law” and even such exotic and highly specialized knowledges as
“investment law” or “international refugee law” etc. - each possessing their own principles
and institutions.
International Law Commission (ILC), ‘Fragmentation of International Law: Difficulties Arising
from the Diversification and Expansion of International Law’ (2006)
• The so called law of nations consists of opinions or sentiments current among nations
generally. It therefore is not law properly so called
Week 2 – Sources of International Law
• Treaties
• Custom
• State practice
• Opinio juris
• Other sources:
• Statutes
• Cases
PICJ was the first international court to govern over disputes between states.
Under article 38 of the statute of the ICJ, there are 4 sources of IL:
