Chapter 1 It can rationalize rules and

Introduction principles that could be relevant on

the national plane as well as in the
1.1 Defining International Law international relations.
Rule is binding because it is
Queries on whether a rule or
International law established by the authority that is
outcome it envisages is good,
- The body of rules binding on the States in their relations with one constitutionally empowered to
useful, necessary, or desirable
another, and determining their mutual rights and obligations. establish binding rues
- The system of international law is owed to the existence of the While natural law encourages the
community of independent sovereign States. Requires viewing those two spaces perception of singularity of
- The law governing relations between States is international law [national and international legal national and international legal
(public international law), while aspects of a national legal system space] as separate from each other space, as well as ideas and
dealing with private relations involving a foreign element is concepts underlying them
conflicts of law (private international law).
Example for the distinction between Natural and Positive Law: ius gentium
Evolution of international law
- This was first used by Jeremy Bentham in 1780 in his Introduction Positive law aspect Natural law aspect
to the Principles of Morals and Legislation. Yet applied to legal relations
- By mid-19th century, in the English and Roman language, involving Romans with foreign
“international law” had replaced the old terms ‘law on nations’ or citizens, as well as relations of
‘droit de gens.’ (Can be traced back to Roman concept of ius Rome with other States (in terms of
gentium and writings of Cicero). Ius gentium in ancient Roman Law
war, peace, and diplomacy.
- In the Dutch, German, and Scandinavian languages, the old was part of Roman domestic law
- From Roman times, the
terminology, ‘law of nations’, was still in use. which is recognized by the sources
idea and legitimacy
o Volkenrecht – German term of Roman Law  (see NLA)
reinforcing ius gentium
- With the evolution of the term “international law”, carried with it rested mainly on the ideas
the evolution of the understanding of the systematic framework of natural law and
which international law operates, and has evolved around perceiving justice.
international law either as natural or positive law.
Important naturalist writers
Positive Law Natural Law
The reasoning based on positive The reasoning based on natural law Francisco Vitoria
law requires identification of law- searches for principles of law and - He took the concept of ius gentium and applied it to relations of
making authority that can lay justice deducible from: natural nations: States were independent of one another, yet the rules
down binding rules of law reason, ethics, morality, or religion. allegedly established by nature governed relations between them.

VDV-MVP 1
 - His attempt to establish jus naturae as the universal law of humanity 16th and 17th centuries
was aimed at including the American Indians in its sphere of legal - The natural law theory was very useful during this time by
protection. encouraging respect for justice at a time when the collapse of the
o He was dealing with the Spanish expansion on the feudal system and the division of Europe between Catholics and
American continent when the need to identify and define Protestants might have otherwise led to complete anarchy.
law applicable to: o Extra notes: (just in case sir asks)
 Relations between the Spanish and American Cause of the division of Europe
Some causes for the collapse of
nations and tribes, between Catholics and
the feudal system
 Transboundary movements of Spaniards, and Protestants
 Territorial supremacy of the natives King Henry the VIII wanted to
marry Anne Boleyn but he was still
Suarez The Black Death, Peasant Revolts, married to Catherine of Aragon. He
- He introduced the term “ius inter gentes”, meaning law between A Centralized government was could not get a divorce, so he broke
States, emphasizing the centrality of the State in creating and established, The Crusades, peasants away from the Catholic Church and
applying international law. moved away from the country to the became head of the Church of
towns to buy their own freedom England just to get into Anne
Hugo Grotius Boleyn’s pants. He executed her a
- He is often regarded as the founder of the Modern Doctrine of few years later though. Lol.
International Law.
- Natural law was originally regarded as having a divine origin, but - The idea of natural law and justice was the most coherent basis on
he considered that the existence of natural law was the automatic which to censor the cruelty with which wars in Europe were then
consequence of the fact that men lived together in society and were conducted.
capable of understanding that certain rules were necessary for the - Even the vagueness of the natural law theory was less apparent in
preservation of society. the time of Grotius, who showed his arguments with bible quotes,
o Example: Prohibition on Murder was a rule under natural references to Greek and Roman history and analogies drawn from
law, independent of any legislation forbidding it because Roman private law which at the time was admired as a fairly
any intelligent man would know that the rule was necessary accurate reflection of natural law.
for the preservation of society. (bad to kill because less
people, less people existing society, ergo, not preserved).
- The essence of the natural law theory is derived from the perception Moving forward to positive law
of justice and this theory could also logically lead to a much more
radical conclusion, namely that an unjust rule is not law at all and From the 17th century onwards
can be disregarded by the judge. (if not just, then it is not law - The argument was consistent that law was largely positive law
because natural law is all about justice). (man-made).
o No modern system would accept this conclusion

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 - Law and justice are not the same thing, and law might vary from
time to time and from place to place, according to the will of the
legislative.
- Applied to international law, positivism regarded the actual behavior
of States as the basis of international law.
- The first great positivist writer was a Dutchman named Cornelius
van Bynkershoek.

Emerich Von Vattel

- He emphasized the inherent rights which States derived from natural
law, but suggested that they were accountable only to their own
consciences for the observance of the duties imposed by natural law,
unless they had agreed to treat those duties as part of natural law.
- Key contribution: emphasis on State consent as the basis for validity
and legitimacy of positive international law, premised on State
autonomy.

Positivist approach
- This approach requires not assessing whether State conduct is
reasonable, necessary, useful or acceptable from a particular socio-
ethical point of view.
- It requires identifying a legal basis under a particular rule of
international law. This constitutes the language of modern
international law.
- Oppenheim: “The first and chief task is the exposition of existing
recognized rules of international law – whether we approve or
condemn it, whether we retain, abolish or replace it.”
- International law is not so much as justice as such, but order,
stability, certainty, and the elimination of that subjective element
that cannot fail to enter into any attempt to apply justice directly,
which often vitiates it.

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1.2 International Law as Law From this point, people have only
such rights as are granted to them
What is International Law? under the law made by that
- The existence of territorially-based sovereign and independent sovereign.
States, subjected to no superior authority, and the restriction of each The sovereign is free of all legal
State’s public authority to its own territory, leaves no other restrictions.
possibility to legally regulate relations between them save through For Austin, not all domestic law is
the rules of law agreed and consented to by those very same Hobbes suggest that on the law properly so-called either.
independent states. international plane, in relations
- International law is created by states through their consent and between independent States, no Example: English Parliament is free
agreement, as opposed to Domestic law, which is created by the such transition from the state of of legal limitations and cannot
State authorities binding individuals without their consent. nature to the civil state has ever receive commands from any entity
o There is no government over and above States taken place, and no sovereign is
- States are independent, autonomous, sovereign, and legally over and above States.
unsubordinated either to one another or to any other authority. There is no one who can create or International law is merely
- There was a controversy before (dating back to the writings of enforce international law. ‘positive morality.’
Hobbes and Pufendorf, and reinforced by Austin’s legal theory) on They both were academically active in periods of history where States
whether international law is law properly so-called. actively used international law for regulating the most pressing matters of
o The controversy was focused on the relevance of the lack international concern.
of sanctions in cases of violation of international norms as
compared to municipal and it has often confused the Herbert Lionel Adolphus (H.L.A) Hart
question whether international law is law with the problem - According to him, international law is a primitive legal system
of the effectiveness and enforcement. which has primary rules (about conduct) but NO secondary rules.
o International law does possess a sufficient number of
Thomas Hobbes John Austin secondary rules (e.g. responsibility of States for
Transition of a particular society internationally wrongful acts, including their retaliation).
from the state of nature (chaos and
lawlessness) to the civil state (law School of political realism (The realist thesis)
and order). His theory views law as a system of - Hans Morgenthau and Henry Kissinger
commands, and similarly suggests - That international law has no primary or decisive influence on the
Such transition occurs, that there is no sovereign to issue conduct and policies of States, which are primarily guided by their
accompanied by the establishment commands to States own national interest, and influenced by considerations of power
of sovereign authority to which more than by anything else.
people surrender their freedom.

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 - The legal essence of international law does not amount to - The international legal system functions as part of the international
questioning the nature of States or the significance of military, system that is not premised on any homogenous perception of public
economic, political, and ideological factors of power. (mepi) interest and social policies the way national societies are.
- The task of legal reasoning is to account for the legal qualification - States are diverse ideologically, socially, politically, and ethically.
that the legal system bestows upon the particular conduct of States, Advancing any socio-political or ethical rationale for legality or
and to identify the legal consequences of that conduct. legitimacy of State conducts is in essence an attempt to substitute
policy and ideological preferences held in one particular part of the
Enforcement of International Law and National Law world for the positions agreed between States in and through the
- It is true that the impact of power and politics is much more rules of International Law.
immediately recognizable and directly relevant in international law o These factors mean that the denial of international law is
and national law. possible not only through the reasoning that focuses on
- The lack of central government over and above States is certainly command, sanction, and enforcement.
responsible for international law being less enforced than national
law, and for increasing temptation to violate it. Legal character of international
Legality of State Conduct
- National law is not impeccably enforced either. law
o There are domestic laws not strictly enforced (women
The legal character of international This has to be measured solely by
being harassed at work for filing maternity leave).
law turn not merely on its reference to the scope and content
- IMPT: If national law is not impeccably enforced despite having
enforcement but also on its of binding rules that command
powerful enforcement machinery at its disposal, and still no one
regulatory quality, which means no shared recognition by States.
questions its legal character on that basis, there is no ground for
more (no less) than the rules of
questioning the legal character of International law either.
international law alone determine Any attempt to conceptualize
o If lack of enforcement does not deprive domestic law of its
the legality (or illegality) of State international law as unable to
binding force and reduce it to mere ‘positive morality’,
conduct falling within the scope of provide, on its own, legal answers
neither does it do that to international law.
those rules, independently without to contentious questions amounts to
the need of contribution from, or a denial of the normative character
The different aspects of International Law
assistance of other social, ethical, of international law, and to viewing
- What distinguishes rules and principles of international law from
and political factors. it as irrelevant.
mere morality is that the former are accepted in practice as legally
binding States in their intercourse. Mismatch between ethical and General agreement between
- While international law is weaker than municipal law from the socio-political perception States
viewpoint of independent enforcement, it still provides the relevant Human rights do not lose their
This is in relation to a particular
terms of reference for the conduct of States in their international binding force because some Asian
matter and requirements under legal
relations, based on the fact that they have to exist within the single states and societies are skeptical
rules applicable to the same matter.
international community without any form of international about them.
government.

VDV-MVP 5
While it is impossible to eliminate
this, it would be more difficult to
secure any general agreement
between States to approximate the
content of international law to the
socio-political or ethical vision held
by any particular group of States.
Socio - political opposition or
disapproval
The fact that this exists contrary to
the strict application of law does not
diminish the applicability of legal
rules to the underlying conduct, nor
alter the qualification of illegality
those rules bestow upon that
conduct.
Socio-political disapproval does
not alone make any action illegal,
any more than socio-political
approval and sympathy alone could
make it lawful.
*No international tribunal has ever
been persuaded to accept any rule
of international law is less binding
because it is not socio-politically
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Neither do the rules on non-use of desired, or that States are under
force or non-intervention become legal obligation only when this is
any less binding because Western politically suitable, or that any
States are keen to uphold the dispute is political, not legal, hence
doctrine of ‘humanitarian outside the relevant tribunal’s
intervention’ (why they keep jurisdiction
sending troops to Afghanistan tbh).
Binding nature of international law
Whether such claim is
- Any admission that a dispute is political and not legal is tantamount
accommodated or not in
to enabling the State to unilaterally exempt itself from the binding
international law depends on
force of applicable legal rules it has consensually accepted, and
whether there is general agreement
hence, the antithesis to the binding nature of international law.
between States to that effect.
- Any suggestion to fine-tune the distinction between law, ethics, and
politics is a suggestion to forget about the discreet status of law that
Best way to understand is owed exclusively to the law-making authority.
international law - International law is not the only normative framework int her
international system as informal standards of morality and courtesy
(comity) may also affect the behavior of States.
- Of all these possible normative frameworks, international law is the
only one with binding force.
Follow through this legal system’s
own requirements and avoid falling
into the trap of some ‘broader’ or
‘holistic’ perspectives that propose
viewing the normative force of law
in context with ethical or socio-
political factors.
6
1.3 Characteristics of International Law agreement, one State agrees to have fewer rights than another, or to be
legally subordinated to another.
Legal binding character of international law
- This may also be attested by positive evidence. States recognize the - Law is a horizontal legal system, lacking in a supreme authority and
relevance and binding force of international law in their mutual the centralization of the three basic functions of law-making
dealings ono a daily basis. (legislature), law determination (courts and tribunals), and law
- Disputes between States are usually accompanied by references to enforcement (administration, police army).
international law. Modern national constitutions frequently contain
references to international law. Self-help measures
o All of this points to the fact that most States are careful to - As there is no centralized government over and above States,
observe most obligations of international law most of the consent of, and agreement between, sovereign States is the tool
time, even in the absence of a compulsory dispute through which law-making authority is exercised within the
settlement procedure and centralized enforcement agency. international legal system, and rules of international law are created.
o UNGA and Security Council are not a world legislature.
Horizontal System of Law o Regarding enforcement, the SC can impose sanctions on a
- This operates in a manner different from a centralized one and is State that has committee serious breaches of international
based on principles of reciprocity and consent (or consensus) rather law, but can do so only in limited circumstances permitted
than on command, obedience, and enforcement. by the terms of the UN Charter.
- The role of self-help by States in cases of a violation of their rights
Domestic Law International Law is predominant in international law.
Primarily concerned with the legal o If one State commits an illegal act against another State,
regulation of the international and refuses to make reparation or to appear before an
Addressed to a large number of
intercourse of States which are international tribunal, the sanction ordinarily available to
governmental bodies, private
organized as territorial entities in the injured State is self-help.
individuals and group of
spite of the obvious factual - These measures should not involve use of force, unless
individuals.
differences in reality, as sovereign requirements for exercise of inherent right to self-defense are met.
and equal on legal terms
Retorsions Reprisals (countermeasures)
Equality Acts which are normally illegal but
Equality in the eyes of law means having the same range of rights and made legal by a prior illegal act
obligations. A lawful act to injure the committed by the other state.
wrongdoing State.
There is no single rule or authority that legally endorse the inequality Reprisals must be proportionate to
between States, or legally privileges powerful States, unless by its own the original wrongdoing

VDV-MVP 7
 Disadvantage responsible for the
One disadvantage is that the State imposing these measures may injure observance by States of
itself as much as the State against which they are directed, or risk the international law
aggravation not merited by the scale and nature of the original wrong
- This is particularly so when one State cutes off trade with another.
Judicial power
In terms of this, the ICJ in the Hague can operate only on the basis of
consent of the State to its jurisdiction.

Consent and Reciprocity

- The organizing elements and principles of international law can be
singled out: consent and reciprocity.

Consent Reciprocity
Once obligations are assumed by
consent, they are ordinarily
assumed in return for something
else, and they operate in a
reciprocal manner for all States
bound by those obligations
When a State need cooperation
Increasing global interdependence
from another State, it has to obtain
and the self-interest of States in
the latter’s consent.
regulating their intercourse
rationally further enhances the
In the absence of consensually
relevance of reciprocity.
assumed legal obligations, no State
has to provide legal cooperation to
Also operates on the place of
another State.
compliance and enforcement.

When a State breaches international

law, it may encounter reciprocal
breaches by other States.
- This factor is an important
deterrent and chiefly

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1.4 The Theory of sovereignty and obligation
History
- Theory of sovereignty began as an attempt to analyze the internal
structure of the State. Political philosophers taught that there must
be, within each State, some entity which possessed supreme
legislative power and/or political power. This dates back to the 16 th
century.
- Political philosophers usually refer to the writings of Machiavelli,
Jean Bodin, Thomas Hobbes, and John Austin.
- It is more accurate to view sovereignty as an attribute of a State as a
whole, rather than searching for sovereign within the range of
domestic constitutional organs of a State.
First aspect of sovereignty (Relations between independent states)
- When a State is said to be a sovereign, all it means is that it is
independent (not dependent of some other State.
- One key implication of State independence and autonomy is that no
rule of international law can bind it without its consent, not that a
State is in any way above the law.
- A key pronouncement on this was made by the Permanent Court of
International Justice in the Lotus Case:
o International law governs relations between States
o Rules of law binding upon States emanate from their own
free will as expressed in conventions or by generally
accepted principles of law and established to regulate the
relations between these co-existing independent
communities.
o Restrictions upon the independence of States cannot be
presumed.
Second aspect of sovereignty (Actual exercise by the State of its
independence and autonomy)
- A key pronouncement on this was made by the Permanent Court of
International Justice in the Wimbledon Case:
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o The Court declines to see an abandonment of its
sovereignty in the conclusion of any treaty by which a state
undertakes to perform or refrain from performing a
particular act.
 The use of sovereignty leads to the assumption of
legal obligations by States through the expression
of their consent.
 These obligations are binding precisely
because they rest on the sovereign
consent of the States
Independence of States
- There is no fixed line between independence and loss of
independence. It is a matter of degree.
- To a layman, the idea of a State joining a supranational organization
such as the EU could be seen as a loss of independence.
o Legally speaking, it is merely a realization of sovereignty
and the giving of sovereign consent.
- States can transfer the law-making authority to the international
institutions. While EU member-States have to obey legislation by
the EU, the latter’s power to enact it derives from the treaty which
the member-States have delegated power to it.
- The very possibility of such far-reaching arrangements under the
stateless system of the international law calls for examining the
ultimate basis of legitimacy of that system.
- In every legal system, there has to be one single basis from which
the binding force of all legal rules and instruments could be derived.
Otherwise, nearly every single binding rule would be affected by
obstruction from another source of legitimacy and conflicts of rules
derived from different sources would be insoluble.
Importance of giving consent
- The relevance of consent given to an obligation outlives its initial
giving, and rationalizes the originally created rule or obligation even
if the State which has authored the consent it not subsequently happy
9
 with rules or obligations that constitute the product of that initial
consent.
- A State cannot unilaterally withdraw its consent which it originally
gave. Therefore, the consensual basis of international law can
subsist only if rationalized on grounds other than consent given to
particular rules and obligations.

Brierly Kelsen
States have no obligation apart
from those they have consented to,
The rule that agreed rules are which again emphasizes that the
binding and have to be fulfilled is State can be subjected to
not itself consensual international obligations by
realizing its sovereign will and
expressing consent.
These two propositions form two sides of the same coin and rationalize the
legitimacy of international law as a body of rules of positive law.

VDV-MVP 10
1.5 New developments in theory
Progress in theories on International Law
- The discourse of international law has expanded, and theories have
been developed to view international law from the angle that is not
positivist.
- What unites those alternative theories is their opposition to
consensual positivism and partial adherence to and reintroduction of
natural law premises into legal reasoning.
- In addition, these alternative theories have a lot in common. While
analytical premises are stated discreetly for each theory, the
implications for legal method become more vivid and obvious when
the handling of particular international legal controversies is at
issue.
Policy Oriented Approach
- [In the height of the Cold War]
- Founded by professor Myres McDougal of Yale University.
- The aim of this theory was to rationalize the role of the United States
as the leader of the free world and suggest ways of legitimizing its
conduct and policies when positive international law would provide
no such legitimation.
- This perspective regards international law as a process of
authoritative policy making decision.
- As such it has been criticized by positivist writers as abandoning the
very concept of law and legal rules
- The principal analytical problem with this approach is that law has
to be viewed as a body of legal rules if its binding nature is to be
secured at all.
Liberal Theory
- [Demise of the Socialist bloc and the rising power of the US]
- Proposed by Anne-Marie Slaughter. A reincarnation of the policy-
oriented approach.
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- The key thesis is that international law differentiates between rights
of liberal States and non-liberal States, privileging the former over
the latter.
- A school of ‘Critical Legal Studies’ has emerged, vigorously
challenging traditional positivist perceptions of international law
from a methodological point of view based on analytical language
philosophy and a hermeneutical theory of law.
- This ‘deconstruction’ of international law legal argumentation by
these critical legal scholars effectively denies that international law
has a distinct existence by its own
o This lack of coherence and determinacy is owed to the
absence of a unified social opinion and a centralized
authority over States, and a compensating factor could be
either the adherence to particular socio-political ideology
or scholars’ and writers’ own perspectives to resolve the
arising issues of indeterminacy and incoherence.
o Outcome is either:
 There are no legal answers to the relevant
questions, or
 There are those dictated by ideology or a writer’s
own perspective and different from what would
follow from rules agreed between States.
Legitimacy and Fairness
- Inspired by the writings of Thomas M. Franck.
- Franck emphasizes the compliance pull that norms have, owing to
their legitimacy, which can be seen either as a restatement of the
binding force of a norm or as an alternative explanation of its
legitimacy, in opposition to the positivist explanation.
- In addition, some more theories have entered the marketplace of
ideas and there is also a claim of a ‘feminist approach’ to
international law.
- Another interesting development is the effort to attempt to bridge
the gap between international law and international relations theory.
11
Marxist-Leninist Theory
- [Following the end of the Cold War and the dissolution of the Soviet
Empire].
- This theory of international law has initially vanished from the arena
and has become of mere historical interest.
- There has been a change of attitude in the former Communist States,
towards international law in general, the precise implications and
durability of which remain to be seen.
- The Marxist perspective has made a reappearance through Third
World approaches to international law, most prominently features in
the writings of B.S. Chimni.
o To what extent Islamic perceptions of international law are
developing into a separate direction is also an open and
interesting question.

Conclusion
- These alternative theories aspire to second-guess the content of and
requirements under positive international law, either out of:
o A desire to use international law as a part of the idealist
agenda to improve the life of humankind on which target
positive international law currently arguably does not
deliver, or
o Skepticism as the reality of international law in the world
or power politics, in a way that is reducible to the basic
tenets of Hobbesian and Pufferdorfian thinking.
- The output of these theories is certainly of academic interest for
understanding the nature of the international legal system.
- These theories have rather limited relevance to the actual practice of
States and the problems that have to be solved in daily life.

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1.6 The study of international law 1.7 Conclusion

Growth of international law (Generalist approach) - Operating in a world of power politics dominated by States with
- This has led to increasing specialization in both academia and legal diverse interests and aspirations, international law neither has the
professions in practice. power base similar to, or mechanisms of enforcement common to,
- As noted by Oscar Shachter: national legal systems, nor is it driven by a relatively uniform and
o It is no longer possible for a ‘generalist’ to cope with the homogenous concept of public interest of social opinion as national
volume and complexity of the various branches of legal systems are.
international law. - Yet, the real power of international law is to be the legal system in
o Increasingly, the professional international law is a the absence of those factors that reinforce national legal systems.
specialist in a particular branch of law and each branch - Breaking rules of international law may be easier than changing
develops its own complicated and often arcane doctrine. their content, and changing the nature of the system is even more
- The specialization reflects the fact that international law has difficult (but has proved to be impossible so far).
“through maturity, acquired complexity”, but this development also
now poses problems with regard to the unity of academic subject.
- Rules in different areas of law are created through the single process
of law-making; tribunals administering specialized jurisdiction have
the same consensual and delegated jurisdiction, and they have to
discuss the same issues as to the scope and extent of their powers
and jurisdiction.
- Various areas raise the issues of their mutual compatibility or
conflict and divergence, resolving which is possible only through
the general international tools of interpretation and the resolution of
normative conflicts.
- Growth of international law means not just its quantitative growth
but also its complexity and interdependence between the various
branches, based of one systematic basis of legitimacy.
- Without the generalist approach, this complexity and
interdependence cannot be understood.

VDV-MVP 13
 Chapter IV  each with NOTE: Int’l law merely
separate basis for legitimizes the existence
International Law and Municipal Law its law-making of national legal systems
authority. but doesn’t. pre-
determinate, or set limits
4.1 BASIC DISTINCTIONS on, the validity of content
 Any legally binding rule is either national or international in of. Rules that national
origin systems enact.
o Reason: There is no law-making authority other than Origin Traced to Heinrich Formulated by Kelsen
national and international ones Triepel, other major  Most radical
Municipal Law International Law proponents of dualism version of monist
Produced by State authorities Produced through or on the basis being Lassa Oppenheim approach
of an international agreement and Dionisio Anzilotti  For him, the
ultimate source
of the validity of
 The relationship between the two can give rise to many all law derived
practical problems, especially if there is a conflict between form a basic rule
the two, or if a rule produced within one legal system is (Grundnorm) of
claimed to have relevance in another. int’l law
 This Grundnorm
rationalizes the
4.2 DUALIST AND MONIST THEORIES
creation and
 These two are two basic theories on the relationship between existence of State
international and domestic law. legal orders and
is therefore also
ultimately
Dualist (Pluralist) View Monist View responsible for
Definitio Assumes that Premised on unitary the validity and
n international law and perception of law legitimacy of
municipal law are TWO  Understands both nat’l law
SEPARATE legal international and  HOWEVER,
systems municipal law as such unity of
 which exist forming part of national and
INDEPENDENT one single legal international
LY of each other, order systems doesn’t
entail the

VDV-MVP 14
 supremacy/prima
cy. of int’l law
 Contention on dualist-monist theory by Fitzmaurice
o The entire controversy is unreal, artificial, and
strictly beside the point, because it assumes
something that has to exist for there to be any
controversy at all – and which in fact doesn’t exist –
namely a common field in which the two legal orders
under discussion both simultaneously have their
spheres of activity.
 International and Municipal law do not apply to same areas
of human and State
o At times In concert
o At times in conflict
LIMITATIONS ON THE TWO (2) THEORIES
 There are also limits in the on the utility of these two (2)
theories since they deal only with the ways in which
international and domestic rules are created, not with. Their
mutual interaction.
 Neither of the two can account for a rule from one legal
system applying, or not applying in another legal system.
4.3 ATTITUDE OF INT’L LAW TO MUNICIPAL LAW
 GR: State cant plead a rule of, or a gap in, its own
municipal law as a defense to a claim based on int’l law.
 Free Zones case:
o France can’t rely on her own legislation to limit the
scope of her international obligations
 In some cases, a treaty or other rule of int’l laws may even
impose an obligation on States to enact a particular rule as
part of their own municipal law
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o In the absence of such specific obligation, the failure
by a State to enact a statute to implement the rules of
international law may not by itself give rise to a
cause of action against that State
o UNLESS a specific breach of the relevant int’l law
obligation is involved
 In the latter case, the State’s municipal law
cant form a defense.
 Art 27, Vienna Convention on the Law of Treaties (VCLT):
A party may not invoke the provisions of its internal law as
justification for its failure to perform a treaty
 Art 3, ILC 2001 Article on State Responsibility: The
characterization of an act of a State as internationally
wrongful is governed by international law. Such
characterization is not affected by the characterization of the
same act as lawful by internal law
o A state can’t, by pleading that its conduct conforms
to the provisions of its internal law, escape the
characterization of that conduct. As wrongful by
int’l law.
o An act of state must be characterized as
internationally wrongful if it constitutes a breach of
an international obligation, even if the act doesn’t
contravene the State’s internal law – even if under
that law, the State was actually bund to act in that
way.
 Art 42, 1996 ICSID Convention in determining. The
applicable law before investment arbitration tribunals:
o Tribunal shall decide a dispute in accordance with
such rules of law as may be agreed by the parties.
o In the absence of such agreement, the Tribunal shall
apply the law of the Contracting State party to the
dispute (including its rules on the conflict of laws)
and such rules of int’l law as may be applicable
 In connection to this, the ICSID annulment committee has
suggested that: art 42 gives these principles a dual role,
15
 o that is complementary (n the case of a ‘lacuna’ in the
law if the State) or
o corrective, should the state’s law not conform on all
points to the principles of int’l law
 In another case: Int’l law overrides domestic law when there
is a contradiction since State can’t justify non-compliance of
its international obli by asserting the provisions of its
domestic law
o Domestic law can as such be a violation of int’l
law, even without particular acts carried out in its
enforcement.
 Int’l law can place reliance on concepts common across
various national legal systems, when the mattes isn’t
regulated under int’l law itself.
o A company’s legal personality is separate from that
of shareholders, and that injury done to the former
doesn’t necessarily entitle the latter to compensation
(Barcelona Traction, ICJ)
4.4 ATTITUDE OF NATIONAL LEGAL SYSTEMS TO
INTERNATIONAL LAW
 States are required to perform their international
obligations in good faith, but they are at liberty to decide
on the modalities of such performance within their
domestic legal systems.
 The effectiveness of int’l law depends on its observance and
implementation in national legal systems.
 International law leaves the method of achieving this result
(described in the literature by varying concepts of
incorporation, adoption, transformation, reception) to the
domestic jurisdiction of States.
 Each national legal system adopts its own approach.
o Consti texts can be starting point
 If one examines such texts (i.e. those of
developing countries emphasizing
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sovereignty), the finding is that most states
do not give primacy to international law
over their own municipal laws
 But this doesn’t mean that most States
would disregard international law
altogether.
 Other reference for analysis:
o Internal legislation
o Attitude of national courts
o Administrative practice
4.4.1TREATIES
 The status of treaties in national legal systems varies
considerably
 A treaty, even after ratification, doesn’t automatically
become part of English law
o Common explanation against the domestic
applicability of treaties is that the Queen could alter
English law without consent of Parliament, contrary
to Parliament’s monopoly of legislative power.
o This isn’t carved in stone nor the legislative
supremacy of parliament’s power
 The initial endorsement of the approach (by Sir Phillimore in
Parlement belge) that treaties should be incorporated by
legislation before they can be applied in courts, took place
on the premise that:
o The executive shouldn’t take away. The rights of a
citizen by concluding a treaty with a foreign state.
o Protection of individual rights (i.e. access to a court)
was at stake
o Stated in a nuance manner to the effect that “there
are a class of treaties the provisions of which were
inoperative without the confirmation of the
legislature; while there were others which operated
without such confirmation"
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 o The key question: “whether a treaty affected
private rights”
 It was much later that the approach on the domestic effect of
treaties became associated with the legislative supremacy of
Parliament.
o A blanket perception of this approach is analytically
tenuous and empirically not feasible, owing to the
variety of treaties English courts have to deal with.
 Exception concerning treaties regulating the conduct of
warfare (admitted in rel. to 1984 Convention on Torture and
1989 Convention on the Rights of the Child).
o The legal position as to the domestic effect of
treaties is entirely a judicial creation and a
matter of common law.
o There is neither logical nor substantive
correspondence between the legislative supremacy
of Parliament and the scope and extent to which
treaties can be directly and without statutory
intervention applied in UK law.
o English courts feel free to apply domestically treaty
provisions which are not specifically domesticated
by an Act of Parliament which deals with the rel-
evant treaty
 The mere domestic application of unincorporated treaties is
not such a heavy task as is their application when treaties
conflict with domestic law.
o If a treaty requires changes in English law, it is
necessary to pass an Act of Parliament in order to
bring English law into conformity with the treaty. If
the Act is not passed, the treaty is still binding on the
United Kingdom from the international point of
view, and the United Kingdom will be responsible
for not complying with the treaty.
1
See Ch. 11.
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 When a rule of municipal law is capable of causing a
breach of international law, it’s the application of the
rule, and not its mere existence, which normally
constitutes the breach on int’l law.
o If the enforcement of the rule is left to the Executive,
which enforces it in such a way that no breach of
international law occurs, all is well.
o Example: there is no pressing need to pass an Act of
Parliament in order to exempt foreign diplomats
from customs duties;1 the Government can achieve
the same result by simply instructing customs
officers not to levy customs duties on the belongings
of foreign diplomats.
 Most other common law countries, except the United
States, follow the English tradition and strictly deny any
direct internal effect of international treaties without
legislative enactment.
 English law does not adopt the doctrine that distinguishes
between 'self-executing' and 'non-self-executing' treaties.
o American courts, which operate against the
background of the US Constitution enabling treaties
to be domestically applied. American courts will
examine the relevant treaty to identify whether its
provisions are clear, specific and determinate enough
to be applied in the domestic context.
o Example: SC of California in Sei Fujii: refused to
give domestic application to Article 55 of the UN
Charter, because this provision did not elaborate
upon immediate rights and obligations of UN
member-States but merely constituted a pledge that
further measures should be agreed upon and taken
 In the vast majority of democratic countries outside the
Commonwealth, the legislature, or part of the legislature,
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 participates in the process of ratification, so that
ratification becomes a legislative act, and the treaty becomes
effective in international law and in municipal law
simultaneously
 Treaties ratified in accordance with the Constitution
automatically become part of the municipal law of the
United States. However, this statement needs some
qualification
 Cases arising under international treaties are within the
judicial power of the United States and thus subject to
certain limitations, within the jurisdiction of the federal
courts (Article III (2)).
 International agreements remain subject to the Bill of
Rights and other requirements of the US Constitution and
cannot be implemented eternally in violation of them.
o If the United States fails to carry out a treaty
obligation because of its unconstitutionality, it
remains responsible for the violation of the treaty
under international law.
 In the United States, treaties enjoy the same status as
national statutes.
o they generally derogate pre-existing legislation (the
principle of lex posterior zrogat legi priori), but are
overruled by statutes enacted later
o However, the reality in the US legal system does not
match the position adopted in the US Constitution.
Eexample of this discrepancy is the distinction
between 'self-executing' and 'non- selff-executing
agreements'
 Aa treaty that can operate without the aid of a domestic
legislative provision is equivalent to the. A t of Congress
and is treated as self-executing.
o Medellin v. Texas, the US Supreme Court held that
unless self-executing, a treaty cannot operate in US
law without being domesticated through an Act of
Congress
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o HOWEVER, the US Constitution contains no such
categorisation of treaties, and mentions neither the
self-execution requirement nor that of legislative
incorporation.
[SOME] KINDS OF TREATIES:
 Statutory/Congressional-executive agreements
o agreements' signed by the President under ordinary
legislation adopted by a majority of both the House
of Representatives and the Senate
o Mots US treaties are this way instead of being
included under Art II with consent of Senate
 Executive Agreements
o the President concludes alone without the
participation of Congress
[cont. of treaties]
 Some constitutions even make treaties superior to
ordinary national legislation and subordinate law, but
rarely superior to constitutional law as such.
o Example: German Basic Law (iGrundgesetz)
enables treaties to have domestic effect only after the
German Parliament adopts a statute incorporating
the relevant treaty into domestic law. However, the
treaty will not be ratified by the Federal President
until Parliament has adopted that law.
 As for French:
o "Treaties or agreements duly ratified or approved
shall, upon publication, prevail over Acts of
Parliament, subject, with respect to each agreement
or treaty, to its application by the other party”
o "Statutory regulations in force within the Kingdom
shall not be applicable if such application is in
conflict with provisions of treaties or of resolutions
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 by international institutions that are binding on all
persons."
o Although there is no system of judicial review of
legislative acts in the Netherlands, Dutch courts thus
obtain the authority to overrule Acts of Parliament,
not on grounds of unconstitutionality, but on the
ground that they may conflict with certain treaties or
resolutions of international organisations.
o However, there is a safeguard built into
constitutional procedures. The Dutch Parliament
has to consent to treaties which conflict with the
Constitution by a majority of two- thirds (Article
91(3)).
 As for Russian
o The generally recognized principles and norms of
international law and the international treaties of the
Russian Federation shall constitute part of its legal
system. If an international treaty of the Russian
Federation establishes other rules than those
stipulated by the law, the rules of the international
treaty shall apply
o Broad because it includes not only treaties but
also generally recognized principles and norms of
int’l law, it doesn’t give priority to these sources
over the Consti.
4.4.2 GENERAL [CUSTOMARY] INTERNATIONAL LAW
 Rules for the recognition of customary international law
in the internal sphere are either
o laid down in advance in the constitution or
o are gradually formulated by the national courts.
 procedure by which a legislature would have to transform
customary international law into municipal law would be
impracticable, simply because it would require a regular
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review of all changes of norms and principles of
international, a task which no legis body could master
 UK Application
o international law is regarded to be part of common
law and directly applicable before English courts.
Along with court decisions from the eighteenth
century onwards, this principle has been reaffirmed
in Blackstone's Commentaries on the Laws of
England, to the effect that "The law of nations is
here adopted in its full extent by the common law,
and is held to be a part of the law of the land."
o Blackstone's position was not owed to any adherence
to natural law.
o The traditional rule in Britain is that customary
international law automatically forms part of
English and Scots law; this is known as the
doctrine of incorporation
 However, it is possible to interpret some
older cases as discarding the doctrine of
incorporation in favor of the doctrine of
transformation, that is, the doctrine that rujes
of customary international law form part of
English law only insofar as they have been
accepted by English Acts of Parliament and
judicial decisions.
o If there is a conflict between customary
international law and an Act of Parliament, the
Act of Parliament prevails. However, wherever
possible, English courts will interpret Acts of
Parliament so that they do not conflict with
customary international law
 International law has a corrective role in relation to
domestic law
o if there is a conflict between customary international
law and a binding judicial precedent laying down a
rule of English law, English courts are free to
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 depart from earlier judicial precedents laying
down a rule of international law if international law
has changed in the meantime (Trendtex case)
 Some qualifications to the doctrine of incorporation
o International crime of aggression was not
automatically criminalized under English law to
enable domestic prosecutions to take place; and,
more generally, international law was not part of
English law, but one of its sources
o However, the judgment has not explained the
difference between the two options. It is indeed
difficult to see how international law could be a
source of English law without being its part, and
vice versa.
o BUT The overall position in the UK thus remains,
regardless of Jones, that customary rales are to be
considered part of the law of the land and
enforced as such, with the qualification that they
are incorporated only so far as is not inconsistent
with an Act of Parliament
 For US
o International law is part of our law, and must be
ascertained and administered by the courts of
justice of appropriate jurisdiction, as often as
questions of right depending upon it are duly
presented for their determination
o More inclined to apply international customary
rules in cases of disputes between individuals and
States than in such between States themselves.
o Example: to exempt coastal fishing vessels from
seizure and to protect neutral ships in international
waters from attack in the Falklands war. No such
rule was found to require the United States to
provide temporary asylum to all persons fleeing
from reign civil wars, because such State practice
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would only reflect "understandable humanitarian
concern
 For European States
o Doctrine of Incorporation is endorsed
o The general rules of international law shall be an
integral part of federal law. They shall take
precedence over the laws and directly create rights
and duties for the Habitants of the federal territory
(Art 25, German Consti; Basic Law)
o The generally recognized rules of international law
are regarded as megral parts of Federal law
(Austrian Consti; Art 9(1))
o The Italian legal system conforms to the generally
recognized principles of international law. (Italian
Consti; Art 10)
o In a survey in 1985 there is a showing that. There
is a tendency to downgrade. Customary
international law
 Present in developing and socialist countries
 France, Spain, Netherlands
o Different survey: Both the written and nonwritten
constitutional law of Western European countries
recognize conventional and customary international
law as 'part of the law of the land', and that the
practice in states without an explicit provision
concerning the relationship between international
law and municipal law is no different from the
practice in states
 most Western European countries give
priority to customary international law
over conflicting rules of statutory domestic
law and that national courts tend to find
harmonization between obligations of
international law and internal law by way of
interpretation under the principle of
"friendliness to international law"
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  IN CONCLUSION:
o Treaty rules, without differentiating between 'self-
executing' and 'non-self-executing' provisions, have
a higher status than contrary domestic laws.
o With regard to human rights, the Constitution
recognizes that they are ensured "according to the
generally recognized principles and norms of int’l
law”
4.5 PUBLIC INT’L LAW AND PRIVATE INT’L LAW
PUBLIC INT’L LAW PRIVATE INT’LLAW
primarily governs the regulating transborder
relationships between States relationships between
individuals, at times resulting in
the extra-territorial application
of State laws
Accordingly, there is a set of
rules in almost every
jurisdiction, directing the courts
when to exercise jurisdiction in
cases involving a foreign
element, when to apply foreign
law in cases involving a foreign
element, and when to recognise
or enforce the judgments of
foreign courts. (although the
existence of jurisdiction over
the case is not, strictly
speaking, a private international
law issue)
Conflicts of Laws
Do not have an international
nature and there are as many
systems of private international
law as there are States. States
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are free to alter their rules of
private international law at will
The rules about the application of foreign law differ
 Example:
o A man's 'personal law' (that is, the law governing
legitimacy, capacity to marry and other questions of
family law) was the law of his religion in Muslim
countries, and the law of his domicile (permanent
home) in Western countries.
o France went through an intensely nationalistic phase,
and decided that French law should be the personal
law of all French nationals; after some hesitation,
French courts inferred from this rule, by way of
analogy, that everyone's personal law should be his
national law, as distinct from the law of his domicile
o England adhered to the old rule of domicile, but a
series of nineteenth-century judicial decisions
introduced a lot of artificiality and complexity into
the rules about acquisition and loss of domicile.
 The consequence is extreme diversity between the rules of
private international law in different countries, with resulting
hardship
o Example: DIVORCE
 If a Spanish national domiciled in England
obtains an English divorce, it will be
recognized in most English-speaking
countries, but not in most continental
countries.
 IN SUM: States sometimes conclude treaties to unify their
rules of private international law; and, when this happens,
the content of private international law does come to be
regulated by public international law.
o Hague Conference on Private Int’l Law made
treatise on this subject
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4.6 ACT OF STATE, JUSTICIABILITY
 Within the broader area of Private IL, such Act of State
doctrine is relevant.
 Under this doctrine, the acts of a State, carried out within its
own territory, cannot be challenged in the courts of other
States (not even if the acts are contrary to international law,
according to the most extreme version of the doctrine).
 ordinarily arises in the context of private international law,
which determines whether the act or conduct having
occurred abroad but challenged in the forum State should be
subjected to local or foreign law.
 In England:
o courts have applied the act of State doctrine and
private international law as alternative grounds for
their decision
o issue they have to address is whether, if Ruritania
expropriates property situated in Ruritania, English
courts accept the expropriation as legal because it is
legal under the laws of the place where the property
is situated (private international law), or because the
expropriation has been carried out by a foreign State
(act of State doctrine)?
 The act of State doctrine is in one sense wider than private
international law because it covers, among others, acts
performed by a foreign State within its own territory which
are contrary to its own law
 Comity
o English judges sometimes say their actions are
dictated by this
o a peculiar doctrine of international law
o literal meaning is 'courtesy', and in this sense comity
is regarded as different from law
o rules of comity are customs (or, perhaps better,
rules of interpretation or application of law) which
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are normally followed but which are not legally
obligatory
o As a rule derived from comity, the act of State
doctrine is not a requirement under public
international law
 Luther v Sagor
o CASE: a State expropriates property situated within
its territory and sells it to a private individual, who is
then sued by the original owner in the courts of
another State
o the leading US case regards the doctrine, not as a
rule of public international law, but as a rule of US
constitutional law, derived from the principle of the
separation of powers
o courts should not embarrass the Executive in its
conduct of foreign relations by questioning the acts
of foreign States
BUT DOCTRINE HAS LIMIITS
 UK
o The act of State doctrine is not applicable to serious
violations of international law and to human rights
violations Oppenheimer v Cattermolef
o Qualified the doctrine by fundamental legal
standards including jus cogens Kuwait Aair Corp
and Belhaj v Straw cases
 Civil law countries, such as France and Germany and those
countries following their legal tradition, normally do not
work with the act of State concept,
o but rather have used their conflict of laws
principles to determine, in particular, the effect to
be accorded to foreign nationalization decrees.
 English Laws
o distinction should be drawn between foreign acts of
State (discussed above), and British acts of State
22
  Reason: semantic similarity AND a political
concern that a government of the forum
State should not be embarrassed in its
relations with foreign governments through
domestic litigation
o However, the two doctrines of acts of State remain
legally distinct.
 For British Acts of State
 emanate from the Royal Prerogative
 can be used only to the extent to
which the use of the Royal
Prerogative could lawfully affect
individual rights in English law.
 In other words, British acts of State
are subject to English common
law.
 The background position as a matter
of English administrative law is that
the action by Prerogative is
reviewable by courts the way the
exercise of statutory discretion is.
 Foreign act of State doctrine doesn’t rest on discreet rule of
IL, nor is any uniform vision of it available across
jurisdictions, or even within single juris.
o It is broader that the British acts – subject to limits
above, it exempts the relevant conduct. Of foreign
authorities from the ordinary requirements of
English common law
 One voice approach
o Not a mandatory requirement
o It means the judiciary should speak with one
voice with the Executive and avoid embarrassing
it in its foreign relations
o Tool of committing an internationally wrongful act
if courts are invited to be loyal to Executive
decisions that contradict int’l law
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 The Exec. Branch of th govt states its
position thru Exec Cert, which related only
to fact, not law
o Problem: Cases relating to premature recognition of
a foreign gov’t by the the British gov’t
 Recognition of a new govt was given
before old govt was overthrown
o Whether the relevant entity is a State or. Whether a
govt can represent a State in int’l relations is a legal,
not factual question.
o For law issues, courts aren’t justified. To defer to
the executives.
 Issue of British act of State. As part of Royal Prerogative
o Runs into domestic effect of treaties
o Undoubtedly, it’s part of royal prerogative to enter
into treaties, assess policy reasons for and against in
terms of relations with treaty. Partners
o There’s stronger case that. Such decisions
shouldn’t be challenged in courts.
o Actual application of treaties transcends the
scope of that prerogative power.
 “Interpretation of a treaty isn’t a matter of
prerogative”
 It’s for courts to ascertain the meaning of.
Treaty provisions, pursuant to the
framework of treaty Interpretation under Art
31-33, VCLT 1969.
4.7 Conclusion
 Two main conclu:
o The national legal systems are in a position to
receive and enforce multiple rules of IL, and
o Domestic Consti arrangements mostly foster rather
than obstruct this possibility.
 Preconceptions on dualism shouldn’t be. Generalized.
o In practice, it still happens that. National courts
don’t always give proper effect to IL, at. The cost of
23
 distorting the meaning of domestic consti as well as
int’l legal principles.
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