PIL WEEK #1
on the place, time, and will of the legislator.
FIRST READING
PART 1
1.1
 International Law – rules binding on states in their relations, determines
their rights and obligations
o Pub. IL – governs in the relations between states
o Priv. IL – national legal system dealing with private law
relations involving a foreign element
 NATURAL LAW v. POSITIVE LAW
NATURAL POSITIVE
Based on natural reason, ethics, Based on law making authority
morals , religion that can lay down binding rules
Singularity of national and Separate spaces
international spaces
Whether a rule is good, Constitutionally empowered
necessary or desirable authprity
 NATURALIST WRITERS:
o Spaniards Vitoria and Suarez, Italian Gentili, and Englishman
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o Agreed that the principles of N and I Law are not derived from
human choice or decision but rather from principles of justice
which have a universal and eternal validity and could be
discovered by pure reason.
o VITORIA – ius gentium
 Took it from jurisprudence but applied it to the relations
of nations
 Even though states were independent, the rules
established by nature applied to them.
o SUAREZ – “law between states”
 Emphasized the centrality of states in creating and
applying the system of IL.
o HUGO GROTIUS – founder of modern doctrine IL
 Believed that the existence of natural law is a
consequence of the fact that humans live together in
the society and understand that certain rules are
necessary for the preservation of such.
 Natural law was useful during the time of the collapse
of the feudal system and the division of Europe
between Catholics and Protestants
 Used biblical quotations, priv. Roman Law
 17TH CENTURY ONWARDS
o leaned towards the view that law was positive law (man made)
o law and justice are not the same and that laws vary depending
 POSITIVIST WRITERS
o Basis was the behavior of states
o Cornelius Van Bynkershoek, Emerich Von Vattel
o VATTEL – emphasized the inherent rights of states which are
derived from natural law, but also suggested that the duties
imposed by natural law are only accountable to their own
consciences unless they have agreed to make it a part of
positive law.
o Emphasized state consent as basis for validity and
legitimacy of positive international law, premised on state
autonomy.
 POSITIVIST APPROACH – requires identifying a legal basis under a
particular rule of international law
1.2
 International Law is created by States through their consent and
agreement versus domestic law which is created by state authorities
without the consent of the individuals.
 There was an old controversy involving the writings of Hobbes and
Pufendorf which centered on the lack of sanctions in case of violations
of international rules.
 HOBBES’ WRITINGS
o Transition from the state of nature (chaos and lawlessness)
to the civil state (law and order).
o Such occurs accompanied by the sovereign authority
wherein people surrender their freedom and the only rights
they have are those granted by the former. The SA is free
from all legal restrictions.
o Based on this, Hobbes believes that in dealing between
States, there has been no transition and that there can be
no sovereign authority above these independent states to
enforce international law.
 AUSTIN’S THEORY
o Laws are a system of commands and there is also no
sovereign authority to enforce IL over the states.
o IL is positive morality
 HLA HART
o IL is a primitive legal system with primary rules (conduct)
but no secondary rules (how rules are made and
interpreted, i.e. interpretation of treaties)
 REALIST THESIS BY KISSINGER AND MORGENTHAU
o Morgenthau – believed that international law does not
affect the way a state conducts itself. They are primarily
governed by self-interest and considerations of power.
 Impact of power and politics is much more evident in international law.  Original thought was that sovereignty belonged to a supreme political
The lack of central government over states is the reason why it is weakly power. But now, it is better viewed as an attribute of the State as a
enforced. whole.
 Lack of enforcement or weak enforcement does not remove IL’s binding
effect on states since IL, as compared to morality, is accepted in practice 1.5
as legally binding by states.  ALTERNATIVE THEORIES
 The legal character of IL also depends on its regulatory quality, which o Policy-Orientated Approach
means that the rules of IL alone determine the legality of state conduct.  New Haven School
 There are also socio-political perceptions and oppositions to IL.  Myres McDougal
However, such do not diminish the binding effect of the rules of IL.  Rationalize the role of the US as leader of the free
world and suggest ways of legitimizing its conduct
and policies when positive law could not do so.
1.3  Viewed IL not as a body of rules but rather as a
 Legal and binding character of IL is attested by positive evidence process of authoritative policy decision-making.
 IL operates on a horizontal system of law which is based on principles o LIBERAL THEORY
of reciprocity and consent rather than command obedience, and  Anne Marie Slaughter
enforcement which are observed in national systems.  IL rights differ between liberal and non-liberal
 IL lacks a supreme authority over law making, determination, and states, the former being favored
enforcement o CRITICAL LEGAL STUDIES
 Since there is no supreme authority, states rely on consensus and  Challenged positivist perceptions
agreement.  Methodological POV
 The role of self-help in IL is predominant (common in modern legal  Effectively denies the existence of IL due to its
systems) indeterminacy, inconsistency, and lack of coherence.
o Should not involve force unless it meets the requirements for  Criticizes IL’s lack of unified social opinion and
inherent right to self-defense. centralized authority
o The forms of self-help are countermeasures (Reprisals) and
retorsions
o Retorsions – lawful act designed to injure the wrongdoing
state. (i.e. cutting off econ. Aid)
o Reprisals – supposed to be illegal but is rendered legal by a
previous illegal act committed by the other state.
 Must be proportionate to the original wrong act.
 Disadvantage is that the state imposing such
measures may injure itself or risk the aggravation
not merited by the scale of the original wrong.
 ELEMENTS OF IL: CONSENT AND RECIPROCITY
o Once obligations are assumed by consent, they are
ordinarily assumed in return for something else
(reciprocal).
o Increasing global interdependence and self-interest of
states enhances the relevance of reciprocity.

1.4
 Theory of sovereignty – analyze the internal structure of the state